Mamlock v. White

Citations

• 20 Cal. 598
• 1862 Cal. LEXIS 81

Syllabus

<p>In an action against a Sheriff for taking goods from the possession of the plaintiff, where the defendant justifies under a writ of attachment against a third person, and alleges a fraudulent sale from such third person to the plaintiff, proof of the</p> <p>, debt on which the writ of attachment was based is necessary for no other purpose than as the foundation for proof that the sale was void as to creditors. Where in such action the fraudulent character of the sale was put in issue by the pleadings, and full proofs regarding that question were introduced on the trial without any objection from plaintiff that the debts on which the writ of attachment rested had not been proved, and no instruction was asked concerning the point, nor the attention of the Court below in any manner called to it: Held, that plaintiff could not avail himself of the absence of proof of the attachment debt by objection raised for the first time in the Appellate Court.</p> <p>Where the defense to an action rests upon the fact of fraud in a sale of property to the plaintiff, the declarations of a person not a party to the action are admissible in favor of defendant, if such person was a party to the purchase alleged to be fraudulent, and his connection with the purchase may be established by the admissions, or conduct equivalent to admissions, of the plaintiff.</p> <p>The rules of law in regard to the right of a failing debtor to give a preference to some of his creditors, have no application to a sale for cash to a person not a creditor, although the proceeds may have been applied to pay creditors.</p>