SEC. 56. From and after the taking effect of this act, if any debtor or insolvent shall, after the commencement of proceedings in insolvency, secrete or conceal any property belonging to his estate, or part with, conceal or destroy, alter, mutilate, or falsify, or cause to be concealed, destroyed, altered, mutilated, or falsified, any book, deed, document, or writing relating thereto, or remove or cause to be removed the same or any part thereof, with intent to prevent it from coming into the possession of the assignee in insolvency, or to hinder, impede, or delay his assignee

b

(a) Sec. 154, Penal Code. "Every debtor who fraudulently removes his property or effects out of this state, or fraudulently sells, conveys, assigns, or conceals his property, with intent to defraud, hinder, or delay his creditors of their rights, claims, or demands, is punishable by imprisonment in the county jail, not exceeding one year, or by fine not exceeding five thousand dollars, or by both."

(b) Sec. 132, Penal Code. "Every person who upon any trial, proceeding, or inquiry, or investigation, whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or antedated, is guilty of a felony." See also secs. 133, 134, 135, Id.

It will be presumed that the insolvent debtor is innocent of crime or wrong. That he intended the ordinary consequences of his own act. That his private transactions have been fair and regular. That the ordinary course of busi

ness has been followed: Code C. P., sec. 1963.

The jury is not bound to decide in conformity with the declarations of any number of witnesses which do not produce conviction in their minds, against a less number, or

in recovering or receiving the same, or make any payment, gift, sale, assignment, transfer, or conveyance of any property belonging to his estate, with like intent, or shall spend any part thereof in gaming; or shall, with intent to defraud, willfully and fraudulently conceal from his assignee, or fraudulently or designedly omit from his schedule, any property or effects whatsoever; or if, in case of any person having to his knowledge or belief proved a false or fictitious debt against his estate, he shall fail to disclose the same to his assignee within one month after coming to the knowledge or belief thereof; or shall attempt to account for any of his property by fictitious losses or expenses; or shall, within three months before the commencement of proceedings in insolvency, under the false pretense of carrying on business and dealing in the ordinary course of trade, obtain on credit from any person any goods or chattels, with intent to defraud; or shall, with intent to defraud his creditors, within three months next before the commencement of proceedings in insolvency, pawn, pledge, or dispose of otherwise than by bona fide transactions in the ordinary way of his trade, any of his goods or chattels which have been obtained on credit and remain unpaid for, he shall be against a presumption or other evidence satisfying their minds: Id. 2061.

In charging the offense, it is unnecessary to follow strictly the language of the statute by which it is defined: People v. Potter, 35 Cal. 110.

In those cases in which it requires the concurrence of several acts, or the doing of the act under particular circumstances, to constitute an offense, the indictment or information should state the necessary acts and circumstances: People v. Murphy, 39 Id. 52.

It is error to instruct a jury, in a civil case of imputed fraud, that if they have a doubt of the guilt of the party charged, they must find in his favor. Issues of fact in civil cases are determined by a preponderance of testimony, and this rule applies as well to cases of fraud as to any other: Ford v. Chambers, 19 Id. 143.

The rule applicable to criminal cases, where the jury have doubt of the guilt of the accused, is inadmissible in civil cases: Id.

It was error to instruct the jury that fraud could not be

deemed guilty of misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in the County Jail for not less than three months nor more than two years. c *

presumed, but may be established by circumstances, but not of a light character; the circumstances must be of a most conclusive nature: Id.

(c) See notes to secs. 49 and 55.

* U. S. R. S., Sec. 5132.-Every person respecting whom proceedings in bankruptcy are commenced, either upon his own petition or upon that of a creditor: 1. Who secretes or conceals any property belonging to his estate; or, 2. Who parts with, conceals, destroys, alters, mutilates, or falsifies, or causes to be concealed, destroyed, altered, mutilated, or falsified, any book, deed, document, or writing relating thereto; or, 3. Who removes or causes to be removed any such property or book, deed, document, or writing out of the district, or otherwise disposes of any part thereof, with intent to prevent it from coming into the possession of the assignee in bankruptcy, or to hinder, impede, or delay him in recovering or receiving the same; or, 4. Who makes any payment, gift, sale, assignment, transfer, or conveyance of any property belonging to his estate with the like intent; or, 5. Who spends any property belonging to his estate in gaming; or, 6. Who, with intent to defraud, willfully and fraudulently conceals from his assignee or omits from his inventory any property or effects required by this title to be described therein; or, 7. Who, having reason to suspect that any other person has proved a false or fictitious debt against his estate, fails to disclose the same to his assignee within one month after coming to the knowledge or belief thereof; or, 8. Who attempts to account for any of his property by fictitious losses or expenses; or, 9. Who within three months before the commencement of proceedings in bankruptcy, under the false color and pretense of carrying on business and dealing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud; or, 10. Who, within three months next before the commencement of proceedings in bankruptcy, with intent to defraud his creditors, pawns, pledges, or disposes of, otherwise than by transactions made in good faith in the ordinary way of his trade, any of his goods or chattels which have been obtained on credit, and remain unpaid for; shall be punishable by imprisonment, with or without hard labor, for not more than three years.

1. The indictment or information for any of the offenses contained in section fifty-six must conform to the general law and practice in criminal proceedings. An indictment or information should set forth the facts and circumstances of the alleged offense, so that the accused may be prepared for his defense: People v. Hood, 6 Cal. 236. They should contain every averment that is substantially necessary for the information of the defendant. If the language of the statute is used it will be sufficient: People v. Dolan, 9 Id. 576; People v. Coonan, 34 Id. 191; People v. Rodriguez, 10 Id. 50; People v. Thompson, 4 Id. 238; People v. White, 34 Id. 183.

2. It must appear that the petitioning creditor had a right to commence and prosecute proceedings. The amount of the debt must appear. It must appear that the bankrupt obtained goods within three months of the bankruptcy, by means of representations, which he knew to be false, that he was carrying on business, and such representation must actually be made by him. The description of goods obtained should state what they were, instead of "a large quantity." The description of goods should be as definite as in a declaration of trover: U. S. v. Prescott et al., 4 B. R. 112.

3. The obvious purpose of the statute is to prevent persons from obtaining goods on credit, with the expectation on the part of those who give the credit that they will be disposed of in the ordinary course of business, when, in fact, the purchaser intends to dispose of such goods in some extraordinary or unusual manner, or knows that he is insolvent, and that the goods will go into the hands of his assignee in bankruptcy, and be disposed of for the benefit of his creditors generally, and not in the usual course of trade. It was to prevent men from abusing their credit, and imposing by means of it upon others, that the act was passed; to compel, so far as the law will do it, the observance of good faith in commercial transactions between business men. A man's intentions can only be ascertained from his acts. From the circumstances surrounding the whole transaction, the jury are to infer what was the probable purpose and intent of the defendant at the time he obtained the goods. The short time that elapsed between the purchase and the unusual transfer of the goods, the false and conflicting statements made by him in regard to his financial condition, and the subterfuges and acts resorted to by him to keep his creditors quiet, are circumstances to be considered as tending to show a fraudulent intent. The criminal intent is not to be presumed without evidence. The law presumes every one innocent until proven guilty, and the defendant is entitled to the benefit of every reasonable doubt: United States v. Frank, 3 B. R. quarto, 175; S. C., 2 Biss. 263; U. S. v. Geary, 4 B. R. 534; U. S. v. Thomas, 7 Id. 188; U. S. v. Penn. 13 Id. 464.

4. The scope of the act is to punish frauds on the creditors generally, and not on the particular creditor who sold the goods, and an indictment which charges a fraud on one creditor only can not be sustained. If the goods were obtained upon credit with the intent of disposing of them to raise money, the fraud on the seller would be the most obvious one; but the object of the statute seems to be to punish fraud on the creditors generally, and it does not refer the intent to the time of the disposing of the goods out of the usual course of trade, and at that time the fraud would not be of one creditor more than of the rest: U. S. v. Clark, 4 B. R. 59; U. S. v. Penn. 13 Id. 464.

5. The making of a fraudulent chattel-mortgage renders a party liable under this provision: U. S. v. Bayer, 13 B. R. 88.

6. It is not necessary that the goods which have been fraudulently disposed of shall have been obtained within three months before the commencement of the proceedings in bankruptcy: U. S. v. Smith, 13 B. R. 61.

SEC. 57. If any debtor shall die after the order of adjudication, the proceedings shall be continued and concluded in like manner and with like validity and effect as if he had lived." *

SEC. 58. Pending proceedings by or against any person, copartner, or corporation, no statute of limitations of this State shall run against a claim which in its nature is provable against the estate of the debtor.

SEC. 59. Any creditor, at any stage in the proceedings, may be represented by his attorney or duly authorized agent.†

(a) Sec. 385, C. C. P.

* U. S. R. S., Sec. 5090.-If the debtor dies after the issuing of the warrant, the proceedings may be continued and concluded in like manner as if he had lived.

1. The word "proceedings" does not include a discharge, unless there is a compliance with the requirements of section 5113 in regard to the application for the discharge and the oath. No discharge can be granted where the debtor dies before these requirements are complied with: In re O'Farrell, 2 B. R. 484; In rè Quinike, 4 Id. 92.

2. If the debtor, in a case of involuntary bankruptcy, dies after the issuing of the order to show cause, and before trial, the proceedings abate: In re John V. McDonald, 8 B. R. 237. After the actual issuing of the warrant they do not abate. The warrant is required to issue forthwith: In re E. C. Litchfield, 9 Id. 506.

+U. S. R. S., Sec. 5095.-Any creditor may act at all meetings by his duly constituted attorney the same as though personally present.

1. In order to vote for assignee, the attorney must be an attorney in fact,