Legal Opinion

Davis v. Robinson

California Supreme Court

Decided July 1, 1858PublishedCited by 9 opinions

Appeal from the District Court of the Fourteenth Judicial District, County of Mevada. This is an action upon a promissory note. The complaint is in the usual form, alleging-the execution of the note, its maturity, and non-payment, and demanding judgment for its amount.

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Appeal from the District Court of the Fourteenth Judicial District, County of Mevada. This is an action upon a promissory note. The complaint is in the usual form, alleging-the execution of the note, its maturity, and non-payment, and demanding judgment for its amount. On the commencement of the action, the defendant was arrested upon charges made in an affidavit of the plaintiff, that he (the defendant) was about to depart from the State with intent to defraud his creditors, and had disposed of his property, with the like intent. The defendant answered the complaint, admitting the execution…

1Opinion of the Court

Field, J., after stating the facts of the case, delivered the opinion of the Court.

Terry, C. J., and Baldwin, J., concurring.

There is no doubt as to the correctness of the position that the *412execution must be warranted by the judgment. It rests upon and must follow the judgment; if it exceeds the judgment, it has no validity. To authorize, therefore, an arrest on execution, the fraud must be stated in the judgment, for the writ issues in the language of the statute in the “ enforcement” of the “judgment.”

Nor do we entertain any doubt that the question of fraud must be submitted to the jury,…

2Cases cited1 opinion

  1. Corwin v. FreelandNew York Supreme Court · 1851

3Cited by9 opinions

  1. Payne v. ElliotCalifornia Supreme Court · 1880
  2. Merritt v. WilcoxCalifornia Supreme Court · 1877
  3. Stewart v. LevyCalifornia Supreme Court · 1868
  4. Ex Parte HowitzCalifornia Court of Appeal · 1906
  5. Banning v. RoyOregon Supreme Court · 1905

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