Rixey v. Pearre Bros. & Co.

Citations

• 89 Va. 113
• 15 S.E. 498
• 1892 Va. LEXIS 78

Syllabus

<p>1. SrnsTiTfTiox—Rule—Exception.—Where creditor has a lien on two funds, and subsequent creditor has a lien on one of them, former will be required to resort first to the fund not common to both; or, if he has already been paid out of the doubly-charged fund, subsequent creditor will be substituted pro tanto to the other fund; but this rule will never be so applied as to unduly delay the prior creditor, or to the prejudice of third persons; and they must both be creditors of the same debtor, and the funds must belong to the same person. Miller v. Holland, 84 Va. 652.</p> <p>2. Idem—Cane at bar.—A partner grants his individual property in trust to secure a debt of his firm to a bank. Afterwards the firm grants its assets to secure its debts, including the bank debt, that was preferred. The firm assets were applied to satisfy the bank debt. The firm creditors petitioned to be substituted to the lien of the bank on the individual property aforesaid.</p> <p>Held :</p> <p>They were not entitled to such substitution, to the prejudice of the individual creditors.</p> <p>3. Attorxev’k Fees—Penalty.—An agreement in a note to pay attorney’s fees for collection is a penalty, and not enforceable.</p>