Bryan, J., concurred.
Before proceeding to examine the questions raised in this case, we think it but justice to commend the able manner in which the cause has been presented to our consideration.
It is not our purpose to examine the various points which have been argued at bar, but to come at once to a single inquiry, which we consider the turning point of the case, and decisive of the whole controversy ; that is, the right of the appellant to go into insolvency in re - lation to debts contracted as a banker.
*209For this purpose, our statute, though not strictly speaking a Bankrupt law, may be treated as such, or as an Insolvent Act, or both, and the question is therefore narrowed down to a simple inquiry of the intention of the Legislature, to be drawn from the Act by settled rules of construction.
The thirtieth section of the Act of May fourth, 1852, entitled “An Act for the Relief of Insolvent Debtors,” provides that “ all insolvent debtors, owing or accountable in any manner for public funds, or property of whatever nature or kind; all unfaithful depositaries; all such as refuse or neglect to pay up all funds received by them, as bankers, brokers, commission merchants, or for money, goods or effects, received by them in a fiduciary capacity, shall be denied the benefit of this Act.”
The petition of Woods states that the firm of Adams & Co. were, at the time of the act of insolvency, engaged in banking and express business, and that he was also engaged in the business of farming.
It is now contended, admitting that the appellant can not be discharged from the obligation of the debts contracted in the business of banking, that he may be discharged as to other debts, not expressly prohibited in the thirtieth section, and may apply under the provisions of the Act to have the assets of said firm distributed, rateably, among the creditors, without proceeding to a final discharge.
In support of this proposition, it is said that the Act, by its title, purports to be an Act as well for the protection of creditors, as for the relief of debtors; and perhaps the greatest protection which can be afforded is by requiring, or enabling, the insolvent to throw all his assets into one common fund, for the benefit of all Ms creditors; that if this can not be done, in a ease'where liabilities have been contracted in a banking business, or in a fiduciary capacity, then a large number of creditors will be entirely remediless. And, second, that the Act does not forbid the insolvent from applying for a distribution of his property, but only denies a discharge.
It is well settled, that the title of an Act is no part of the law itself; although it may be referred to, in cases of doubt, to ascertain the intention of the Legislature. The Act now under consideration has already received a judicial examination at the hands of this Court, in *210the case of Chever v. Hays, 3 Cal. 472, in which it was determined that it was the intention of the Legislature to do away with all voluntary assignments. Acting upon what we believe to be the better opinion of jurists, and unrestrained by any former decisions of this Court, we cheerfully avail ourselves of the opportunity thus afforded by the statute, of removing this blot from our jurisprudence, and strangling forever this ready accessory of fraud and dishonesty. Since that decision, the right, as it existed in common law, of a debtor in failing circumstances, to assign his property for the benefit of all, or a few of his chosen creditors, has never been asserted, within our knowledge, in the Courts of this State.
This we think is the only substantial protection secured to the creditors ; for, as we shall show presently, save the prohibition which destroys the common law right that enabled the debtor to assign his property to whomsoever he pleased, no security or right has been guaranteed to the creditor which he did not possess before, and might have asserted in a court of law or equity; while the relief sought to be given to debtors, consisted in protecting them from harassing and expensive litigation, and in a final discharge from their liabilities in case of a strict compliance with the provisions of the statute.
In determining whether the present case comes within the statute for any purpose, we assume, that proceedings in insolvency are not stricti juris, either proceedings in law or equity, but a new remedy or proceeding, created by statute, the administration of which has been vested in the District Courts of this State, independent of their common law or chancery powers as courts of general jurisdiction. And, second, that whenever a new right is created by statute, and the enforcement of such right is committed to a court (even) of general original jurisdiction, that such court quoad hoc is an inferior court, and must pursue the statute strictly.
Testing this case by these propositions,—and admitting for the sake of argument that the prohibition conlained in the thirtieth section, does not extend to the profession, but only to the subject matter of the insolvency,—how stands the case ?
The appellants’ petition shows upon its face that a portion of the indebtedness, from which he seeks to be discharged, has been con*211tracted as a banker; thus showing a case within the provision of the thirtieth section, and expressly negating the jurisdiction of the court; for it must be borne in mind, that the Act requires the petitioner to set forth the amount of his indebtedness, how contracted, etc., together with a prayer for a discharge.
Now, the District Court, acting as a court of limited or inferior jurisdiction in these matters, must first ascertain, that the person, the subject matter, and the relief sought, are within the statute, before its jurisdiction will attach. How, then, can the Court be said to have jurisdiction for any purpose, when the first step taken in the proceeding shows the party to be beyond the pale of the Act, and the subject matter beyond the jurisdiction of the Court ?
It is contended that the Court below could not determine the question, except upon a complete investigation of the whole case; and this Court has been referred to other sections of the statute which deny the benefit of the Act to those insolvent debtors who may have been guilty of fraud, etc.; and we are asked how the Court is to ascertain these facts, except by judicial inquiry? This position may be illustrated by the example of a party seeking the aid of a Court of Chancery, and confessing his own turpitude in his bill. In such a case, would it be contended for an instant, that a Court of Equity would listen to the application, and wait for a judicial ascertainment of the facts thus alleged ? On the contrary, the door of justice would be closed upon him, and he would be told that equity had no jurisdiction in a case confessedly fraudulent and immoral.
In the cases enumerated in the sections referred to, the Court would be bound to take jurisdiction ; it not appearing upon the face of the proceedings that the party had been guilty of any act which would prevent such jurisdiction from attaching ; and having once obtained possession of the whole fund, it would be competent for a Court of Chancery to proceed and distribute, even if it should afterward appear in the course of judicial investigation, that the insolvent had been guilty of some act which prevented his discharge.
It is difficult to adduce arguments in support of a proposition which we consider so clear. Strip the case of all the embarrassing questions *212which have been thrown around it in its progress in the Court below, and in our opinion it scarcely admits of a reasonable doubt.
The mere right of discharge cannot properly be said to be the only relief resulting to the debtors. The exemption from arrest upon mesne or final process, as well as from costs and expenses of harrassing litiga tion, are certainly to be considered a relief to the insolvent, who may be upon the very threshold of a prison to answer with his body for debts fraudulently contracted.
It will not do to say that the only benefit secured by the Act to creditors, is the permission allowed to the debtor to file his petition, and compel his creditors to come in and distribute the assets among themselves. This voluntary permission can in no just sense be said to afford any protection to the creditor, and as already said, he acquires no other rights, by the Act, with the exception of protection against all voluntary assignments, than he possessed before; for he might then, as now, file a creditor’s bill, or pursue his ordinary legal remedies.
We see none of the practical evils resulting from this construction, which have been anticipated by counsel. The remedies of the parties in law and equity remain the same: either one of the partners oí an insolvent firm may file his bill, obtain an injunction and receiver, and have the assets distributed.
The Legislature for some good cause have thought proper to exclude this class of indebtedness from the operation of the Act, leaving the parties to the ordinary remedies. In so doing, they seem to have acted in consonance with the spirit of the age, as well as the Constitution of this State, which expressly discountenances contracts of this character.
If the power to discharge the insolvent is denied, in this class of cases, jurisdiction for any other purpose would seem inharmonious to the general scheme or policy of the Act, which looks to the final discharge as the object to be worked out, and can not be said in these cases to be of any protection to the creditor, by simply permitting the debtor to throw his assets into insolvency for distribution, if he thinks proper to do so; for it must be borne in mind that the Act makes no provision for an involuntary surrender, and the mere permission of an exercise of volition on the part of an insolvent debtor, will be found to amount to no protection at all, particularly where the benefits of the *213Act are denied, and the real incentive to an honest surrender of all his assets is thus removed.
It has been supposed that the decision of this Court in the case of Chever v. Hays, 3 Cal. 472, sustained the right of a party to go into insolvency under this Act, without proceeding to a final discharge. On examination of that decision, it will be found that the question under consideration was not raised, and the language of the Court was intended to apply to those cases wh.ere the petitioner was entitled to his discharge, but did not see proper to prosecute his rights further than a distribution of his property; which might be done, as I know of no power that a Court possesses to compel the party to his discharge against his wishes.
Eor these reasons we are of opinion, that the Court below had no jurisdiction in the matter of the application of I. C. Woods in insolvency, it appearing upon his petition that a portion of the indebtedness therein set forth was contracted in the business of banking, and that the whole proceeding was coram nonjudice and void.
Judgment affirmed, with costs.