Appeal from the Sixth District.

Bill to set aside certain judgments by confession in favor of Davis, Galland and Goldman and against Harris & Morris, on the ground of fraud as against plaintiffs and other creditors.

The allegations of the complaint, as to the fraudulent character of the judgments in favor of Davis, Galland and Goldman, are: “And for a further cause of action, plaintiffs say, that they are informed and believe, and so charge the truth to be, that said Harris & Morris were not indebted to said Davis, Galland and Goldman at the time the said judgments were confessed, and if indebted at all, only to a very small amount, not exceeding in all the sum of §1,000, and that said Harris & Morris did not borrow from said Davis, Galland and Goldman the- several large amounts alleged to have been borrowed from them ; that the notes mentioned in said confessions of judgment were given and the said judgments were confessed for the purpose of hindering, delaying and defrauding the plaintiffs and other bona fide creditors of said Harris & Morris. The plaintiffs say that at the time of the sale of said liquors, etc., by the plaintiffs to said Harris & Morris, the said Harris informed plaintiffs that said firm xvere not indebted to any person in the city of Sacramento, and that said statement was made to plaintiffs since the dates of the notes alleged to have been given to said Davis, Galland and Goldman; and that the plaintiff says that they are informed and believe that said Davis, Galland and Goldman have combined and confederated with said Harris & Morris to injure and defraud plaintiffs and the other creditors of said firm, and to that end and purpose the said judgments were confessed.”

The answers denied all charges of fraud.

In the month of April, 1861, the defendants, Harris & Morris, liquor dealers and saloon keepers in Sacramento, being in embarrassed circumstances and unable to pay their debts without an extension of time, resorted to their attorneys, Winans & Hyer, for advice regarding their business matters. Having made an ineffectual attempt to settle with a San Francisco creditor, (Turner & Co.) and anticipating that creditor would take proceedings against them, which would destroy their business, and being desirous therefore to give certain confidential creditors, namely : defendants Galland, Goldman & Davis, “ who were urging a payment of their claims,” a preference, they, on or about the first day of May, consulted their said attorneys in reference thereto. The mode of accomplishing the object suggested by their attorneys, was to confess judgment in favor of Galland, Goldman & Davis for their respective debts. Harris & Morris consented to make such confession, on condition that Harris & Morris should prepare confessions of judgment and leave them in the hands of their attorneys, without the entry of judgment thereon, until they could make an effort to procure an extension from their other creditors, who were in San Francisco. If Harris & Morris could get the extension, then Gal-land, Goldman & Davis were not authorized to obtain the confession from Winans & Hyer and enter judgment thereon, but on the contrary, agreed to give an equal extension on their debts. But if Harris & Morris were unable to procure an extension from their other creditors, and could not therefore go on with their business, then Galland, Goldman & Davis were authorized to procure the confessions from Winans & Hyer, enter judgment thereon, issue execution, etc.

On the first of May, 1860, confessions of judgment were made to the said parties, subject to the conditions referred to, and left with Winans & Hyer. Morris then went to San Francisco to procure, if possible, an extension from the other creditors. In this he failed, and Mr. Hyer, having learned from the circumstance of the levy of a San Francisco attachment on the property of Harris & Morris, that the negotiations of Morris had been unsuccessful, and the condition upon which the judgments were to be entered had occurred, thereupon, at the instance of Galland, Goldman & Davis, on the morning of May 3d, entered judgments in their favor upon the confessions; executions were issued and levied on the liquors, etc., in the saloon of defendants.

Subsequently, on the same day, Harris & Morris confessed a judgment to plaintiffs, who levied execution upon the same property.

When the executions of Galland, Goldman & Davis were levied, there was a convention in the building where the saloon was, and the proceeds of the bar were great. Galland, Goldman & Davis served upon the Sheriff, after having advised with Mr. Hyer whether they could properly do so, and been informed that in his judgment they could, the following notice:

“ District Court, ) State of California,

“ City and County of Sacramento. J Sixth Judicial District.

J. Davis, 1 M. Goldman, ) A. Galland,

vs. > vs. > vs.

J. Harris et al. ) J. Harris et al. ) J. Harris et al.

“ Sylvester Marshall, Sheriff of Sacramento:

“ You are hereby requested to levy upon all the property contained in and about the Railroad Exchange belonging to defendants, and hold the same for the satisfaction of the executions issued in above confessions of judgment, but inasmuch as defendants represent unto us that there is a prospect of a settlement being speedily made with their creditors, you are hereby authorized to allow the business of the bar to continue without closing the house until further notice from us, or either of us, and for that purpose we consent that you appoint the present bar keepers as your bailiffs, holding balance of said property yourself.

“ J. Davis,

“ M. Goldman,

“ A. Galland, by his Att’y.

“ M. Goldman.

“ Sacramento,"May 3d, 1860.”

The Sheriff, however, did not act upon these instructions, but closed the house. Mr. Hyer states the object of serving this notice was to increase the assets, and further says: “ I was willing the Sheriff should receive the receipts of the bar, as we supposed that outside of the bar the Sheriff had enough attached to meet the attachments and executions already levied,” namely: the San Francisco attachment, and the three executions of Galland, Goldman and Davis. The proceeds of the property, when sold, were only sufficient to pay these three executions.

Upon the trial, certain special issues were submitted to a jury: 1st, whether the debts for which judgment had been confessed in favor of Davis, Galland and Goldman were bona fide or simulated; and 2d, whether the judgments were confessed to be used and collected in any event, or only to be used in the event Meeker & Co. sought to collect their debt.

Upon these issues the jury answered; 1st, that the Davis debt was without consideration, and that nothing was due to him by Harris & Co.; 2d, that they could not agree as to whether the Goldman debt was simulated or not; 3d, they found that the Gal-land debt was bona fide; and 4th, that at the time the judgments were confessed to these parties, there was no intention to use them, except in the event that Meeker & Co. and other San Francisco creditors should refuse to extend the time, and attempt to collect their debts. Judgment was reserved, and subsequently plaintiffs moved for judgment, non obstante veredicto, against Galland and Goldman. The Court filed a written opinion, maintaining, in substance, that the agreement between Galland and Goldman and Harris and Morris, that the former should not use the confessions of judgment made in their favor by the latter, except in the event that Meeker k Co. and other San Francisco creditors should refuse an extension of time, and attempt to collect their debts, etc., amounted in law to fraudulent use of a judgment; that the purpose was to hinder other creditors in the collection of their debts within section twenty of our Statute of Frauds (Wood’s Dig. 107). The Court therefore directed plaintiffs’ counsel to draw findings accordingly, and a decree in favor of plaintiffs as prayed for.

Subsequently, plaintiffs’ counsel presented findings embracing the facts before stated, adopting the special verdict, except as to Goldman’s debt, upon which the jury failed to agree; and, as to this, ■finding it to be just and due, and finding as conclusion of law that plaintiffs were entitled to have their judgment satisfied out of the funds in the Sheriff’s hands before Davis, Galland and Goldman.

To these findings defendants excepted, on the grounds that the Court had no power to make them, because, the case having been submitted to a jury, their verdict was conclusive, and left the Court nothing but to draw conclusions of law. Overruled, and findings signed by the Judge, and judgment accordingly for plaintiffs as asked.

Motion for new trial overruled. ¡Neither on the introduction of evidence on the trial, nor on the motions for nonsuit or new trial, was there any objection taken by defendants to the complaint as not sufficiently pleading the alleged fraud by Davis, Galland and Goldman, and Harris & Morris. Defendants’ appeal.