Merritt v. Glidden et al.

ever made, executed or delivered between the parties, or any of them.

THIRD. Because it was not proven that the cargo of lumber, in the complaints mentioned, was ever transported from Port Orchard to San Francisco under the contract.

FOURTH. Because it was not proven what was the value of the transportation of said cargo from said Port Orchard to San Francisco.

The motion for nonsuit was overruled.

Defendants then introduced in evidence a bill of lading signed by the plaintiff for the cargo of lumber shipped at Port Orchard, to be delivered in San Francisco, reserving freight at the rate of nine dollars per thousand feet, but not specifying that the freight was payable in gold coin. The court rendered judgment for the plaintiff, for the amount claimed in the complaint. Defendants moved for a new trial, which motion was overruled, and defendants appealed. The other facts are stated in the opinion.

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BISHOP & GERALD for appellants:

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FIRST. The allegation of the complaint is, that "by a certain charter party of affreightment, then and there made, it was witnessed It does not say that any contract ever was made. The fact is simply recitednothing more-and is nowhere directly alleged. The case of St. Clair Denver v. Burton, 28 Cal. 550, is directly in point. In Stringer v. Davis, 30 Cal. 320, the supreme court affirmed the doctrine laid down in Denver v. Burton, supra.

There is no allegation in the complaint that the contract was delivered; nor is there any of proof that it ever was delivered. This is a fact material to plaintiff's case, as much so as the fact of the execution of the contract. Barron v. Frink, 30 Cal. 480; Bartlett v. Crozier, 17 John. 457; Russel v. Byron & Ford, 2 Cal. 86; Gregory & Ford, 14 id. 142; Himmelman v. Danos, 35 id. 441.

SECOND. Even if the charter party were properly alleged

Merritt v. Glidden et al.

and proven, the bill of lading, which does not call for gold coin, supersedes it.

The bill of lading was made by the plaintiff, himself, subsequent to the execution of the charter party at Port Orchard, and delivered to the defendants before sailing. On the arrival of the vessel here, it was presented to plaintiff by the defendant, Glidden, and he received the cargo under it.

The words "final judgment," as used in the bankrupt law, mean a final and complete adjudication of the subject matter of the action-a judgment which cannot be appealed from. The judgment of the district court, though final in reference to the court in which it was rendered, was not final in reference to the subject matter of the controversy. A "final judgment" may be a judgment final in the court which renders it, or it may be final as to the subject matter of the controversy. The latter is the broader definition, and includes the former. United States v. Schooner Peggy, 1 Crouch 37; Snell v. The Bridgewater C. G. Manufacturing Co. 24 Pick. 296; Hills v. Sherwood, 33 Cal. 478.

BARSTOW & GARBER, for respondents:

FIRST. The complaint is good, according to the well established rules of common law pleading. Smith v. Scott, 95 E. C. L. 771: Wilcox v. Haswell, E. C. L. 72; King v. Sutton 1 Wm. Saunders, 274; Spear v. Bicknell, 5 Mass. 125; Brymer v. The Thomas, etc., 2 Exchequer, 584. See, also, 2 Chitty on Pleading, marginal page, 221, for the form after which the complaint was framed.

The old forms of pleading have always been held sufficient by this court. Wilkins v. Stidger, 22 Cal. 235; Abadie v. Carillo, 32 id. 172; Freeborn v. Elozer, 10 id. 337.

In debt on a charter party, it was held good pleading to say, by a certain charter party it was witnessed “testatum existit." Jones v. Weaver, Dyer, 118; Bullivant v. Holman,— James, 637; Stephens on Pleading, Rule V. 389.

p. "In declarations, whether in debt or covenant, it is suffi

Merritt v. Glidden et al.

cient to say it is witnessed,' for it is only inducement to the action, contra in pleas or avowries; but even then it is good on general demurrer." King v. Sutton, supra.

The objection was waived by failing to demur to the complaint. The defect, if any, is one of form, not of substance. "A defectiveness of such pleading is not in the matter pleaded, but in the manner of pleading it; and it is therefore only a fault in form." Gould's Pleadings, chap. 3 sec. 30.

In a declaration, a material allegation by way of recital, is amendable, and is ill only on a special demurrer. 2 Salk. 636; 1 Chitty's Pleadings, 375; 1 Wils. 99; 2 Mass. 358; 7 Johns. 109.

The defect being not in the matter alleged, but in the manner of alleging it. Gould, chap. 3, sec. 33.

So, under our practice act, this is not an objection that the complaint does not state facts sufficient, etc., but that it does not state them in proper form. Wilkins v. Stidger, 22 Cal. 235; Spear v. Bicknell, 5 Mass. 125.

The objection that the facts are stated by way of recital, can only be taken by special demurrer. Ring v. Roxborough, 2 C. &. J. 420; Spencer v. Southwick, 9 Johns. 316; St. Johns v. Northrop, 23 Barb. 30; Castro's Exr. v. Armesli, 14 Cal. 38; Mills v. Gleason, 21 id. 279; Garcia v. Satrustegui, 4 id. 244.

Whatever is good pleading at common law, is good here. Abadie v. Carillo, 32 Cal. 175, and cases cited.

Another objection urged against the complaint is, that it fails to show that the charter party was ever delivered. An allegation of delivery of such an instrument, is unnecessary. Russell v. Whipple, 2 Cowen, 536.

Where several instruments relate to the same transaction, the proper mode of construction is to take them together. Carman v. Fowler, 24 E. L. & E. 328; Stacy v. Randall, 17 Ill. 426. There is no discrepancy between the charter party and the bill of lading; one mentions nine dollars in gold, and the other simply nine dollars. In that respect the two are exactly alike in contemplation of law. Reese v. Stearns, 29 Cal. 273.

But the bill of lading is not signed by the defendants ; so

Merritt v. Glidden et al.

that if it did provide that payment should be made in gold, it would not be binding on them.

SECOND. That term "final judgment," as used in this section, is the judgment from which this appeal is taken. The action had been prosecuted to final judgment long before proceedings in bankruptcy had been instituted. The appellants have procured a stay of proceedings on it by taking this appeal; but their act does not render it any the less final, nor will it be any more a final judgment, if affirmed by this court. If it were not a final judgment, no appeal would lie from it. Loring v. Illsley, 1 Cal. 24; Belt v. Davis, 1 Cal. 134; 33 Cal. 474; 24 Cal. 334; 34 Cal. 167; 28 Cal. 416.

RHODES, C. J.-The complaint is sufficient. It accords substantially with the forms given in Chitty on Pleading, and, according to the authorities cited by the plaintiff, it would be regarded as sufficient at common law. Should it be considered defective, under the rules of the code, the defect is in matter of form and not of substance-not in the matter alleged, but in the manner in which it is alleged. Such defect can be reached only by demurrer, on the seventh ground mentioned in section forty-that the complaint is unintelligible or uncertain.

After the cause was submitted to this court, on briefs to be filed, the counsel for the defendants, who are the appellants, filed in this court an adjudication of the bankruptcy of the defendants, rendered by the register of the district court of the United States for the district of California, after the appeal was taken. The purpose is, to have the proceedings in this court stayed, until the question of the defendant's discharge shall be determined.

The bankrupt act (14 U. S. Statutes, p. 526, sec. 21), provides that "no creditor whose debt is provable under this act, shall be allowed to prosecute to final judgment, any suit at law, or in equity therefor, against the bankrupt, until the question of the debtor's discharge shall have been determined; and any such suit or proceeding, shall, upon the application

Koblsaat v. Hoguet et al.

of the bankrupt, be stayed to await the determination of the court in bankruptcy, on the question of the discharge, provided there be no unreasonable delay on the part of the bankrupt, in endeavoring to obtain his discharge."

No authorities are cited by counsel, which throw any light on the question, whether an adjudication of the bankruptcy of a party, against whom a judgment had been rendered, would have the effect to stay proceedings on an appeal, which had been taken by him from the judgment.

The judgment from which the appeal is taken is, in our opinion, final, in the sense of the statute. It was not, we think, the purpose of the statute to suspend the right of the plaintiff to maintain in the appellate court, the correctness and validity of a judgment, from which the bankrupt might choose to take an appeal, until the determination of the question of the discharge of the bankrupt. To give the statute that construction, would place it in the power of the bankrupt to delay, and thus defeat remedies to which the plaintiff was entitled, and that, too, in cases where the appeal would be dismissed on motion of the plaintiff.

Judgment affirmed.

UNITED STATES DISTRICT COURT-S. D. NEW YORK. Where the debtor, when insolvent, suffered his property to be taken on legal process on behalf of creditors, with the intent to give them preference, and they had at the time reasonable cause to believe that he was insolvent and that the transaction was in fraud of the provisions of the bankrupt act, and the transaction took place within four months before the filing of the petition in bankruptcy, it was a frand on the act for the debtor to give or for the creditor to accept of the preference with the intent to prefer. The insolvency, the intent to prefer and the doing or suffering the thing which works the preference, are the elements on the part of the debtor. The elements on the part of the creditor are the receiving or being benefited by such thing, the having reasonable cause to believe the debtor insolvent, and the having reasonable cause to believe that a preference is intended. These six elements must co-exist, but nothing else is necessary to make the transaction void, if challenged by the assignee in bankruptcy in duo time.

KOHLSAAT v. HOGUET et al.

BLATCHFORD, J.-This case comes directly within the decision of this court, in the case of in re Black & Secor, 1 N. B. R.