O'Kane v. Hyde

Citations

• 70 Cal. 6
• 12 P. 124
• 1886 Cal. LEXIS 709

Syllabus

<p>Assignment fob Benefit of Cbeditobs—Partnership—Preference Given to Firm Cbeditobs.—An assignment for the benefit of creditors, made by a partnership, of their individual as well as of their partnership property, is void as to creditors, if a preference is given to the partnership creditors over the individual creditors as to the individual property.</p> <p>Id. —Validity of Assignment—Garnished Debtor may Dispute.—On ths 22d of March, 1879, the firm of Daly & Hawkins made an alleged assignment for the benefit of their creditors to the plaintiff. At that time, the defendant, George Hyde, was indebted to the firm of Daly & Hawkins on two promissory notes in the sum of §3,445, and the firm were indebted to the Hibernia Savings and Loan Society in the sum of $0,000. On the 27th of March, 1879, in an action brought by the Hibernia Savings and Loan Society against Daly & Hawkins, the debt due by Hyde to them was garnished, and was subsequently paid by him in satisfaction of the judgment recovered in the action by the Hibernia Savings and Loan Society. On the 10th of April, 1879, the assignee, O’Kane, commenced an action against Daly & Hawkins, the Hibernia Savings and Loan Society, and other general creditors of Daly & Hawkins, to be discharged of his trust, and in the complaint therein enumerated the notes as ambng the assets delivered to him by Daly & Hawkins. The Hibernia Savings and Loan Society in its answer denied the right of O’Kane to be discharged of his trust, and prayed that the assignment be adjudged void. On the 7th of October, 1880, an order was made by the superior judge before whom the suit was pending, directing O’Kane to bring an action against the defendant Hyde for the collection of the notes. The present action was thereupon brought. The answer of the defendant set up the payment of the notes under the garnishment to the Hibernia Savings and Loan Society, and alleged that the assignment to the plaintiff was void because it gave a preference to the