Read v. Bennett

Cole, J. We think tbe new trial was properly granted. Certain deeds were offered in evidence, each conveying an interest in tbe land attached. From these deeds, it appears that the defendant conveyed tbe land to one Dunstan, August 12, 1865. Tbis was after be filed bis petition and schedule for a discharge under tbe insolvent act of California. Tbe presumption is, that he owned tbe land wbicb he conveyed in Airgust. If be did, then bis neglect or failure to embrace it in bis schedule would avoid bis discharge; for tbe law of California, wbicb was read on tbe trial, provides that if at any [374] time thereafter it is made to appear that the insolvent debtor has concealed any part of his property, or given a false schedule, he shall forfeit all benefit and advantage which he would otherwise have had by virtue of the act. This statute undoubtedly required the insolvent to schedule the land which he owned in this state. If he did not, he could not claim the benefit of that statute. Now we think sufficient facts ■ were proven on the trial to show, presumptively at least, that the discharge was fraudulent on account of the neglect to schedule the lands in Wisconsin. The circuit court charged the jury that the evidence introduced to show that the defendant owned real estate in Wisconsin which was not scheduled, was insufficient to establish that fact. This, we think, was erroneous. We think also that the first instruction asked by the defendant, and given, was not strictly correct, in view of the evidence. This being so, the court properly granted a new trial. By the Court. — The order granting a new trial is affirmed.