In re Dyer v. Bradley

Citations

• 89 Cal. 557
• 26 P. 1103
• 1891 Cal. LEXIS 854

Syllabus

<p>Insolvency Proceedings—Opposition to Discharge —Pleading — Striking out Irrelevant Specifications. — Under section 50 of the Insolvent Act, a creditor opposing the discharge of a debtor must state in his written specifications facts which, if denied, will raise material issues, and if admitted or established will constitute valid grounds of opposition to the discharge; and if he fails to do this, and states only irrelevant and im material matters, the specifications may, on motion, be stricken out or disregarded.</p> <p>Id.—Fraudulent Preference — Limitation of Time — Invalid Ground of Opposition. —No preference is fraudulent under sections 49 and 55 of the Insolvent Act, unless it is made within one month before the filing of the petition in insolvency; and an allegation by an opposing creditor, in his specifications of the grounds of his opposition, that, a year and eight months before the debtor filed his petition in insolvency, he, knowing that he was then insolvent, paid two of his creditors in full, with intent to prefer them to other creditors, does not constitute a valid ground of opposition to the discharge.</p> <p>Id.—Debt Fraudulently Contracted in Fiduciary Character—Invalid Opposition of Creditor. — Under section 52 of the Insolvent Act, a debt created by a fraud of the debtor while acting in a fiduciary character is not affected by the debtor’s discharge in insolvency, and the fact that the debt was so created is not a valid ground of opposition to the discharge.</p> <p>Id.—Pleading — Conclusion of Law — Fraud upon Creditors.—An allegation that the insolvent, by making the payments complained of, “ did thereby defraud his other creditors,” is an allegation of a mere conclusion of law, and in the absence of a statement of facts showing that the payments constituted a fraud upon the other creditors, or that the insolvent intended thereby to defraud his other creditors, is not a sufficient charge of a fraudulent preference.</p>