Dawson v. Figueiro , 16 Ga. 610 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

[1.] The ,Act of 1818, to prevent assignments to a portion ■of creditors, to the exclusion and injury of the other creditors, of persons who fail in trade, or who are indebted, at the time of such assignment, has in it these words:

“ That any person or persons, unable to pay his, her or their debts, who shall, at any time hereafter, make any assignment or transfer of real or personal property, stock in trade, debts, dues or demands, in trust to any person or persons, in satisfaction or payment of any debt or demand, or in part thereof, for the use and benefit of his, her or their creditor or creditors, or for the use and benefit of any other person or persons, by which any creditor of the said debtor shall or may be excluded from an equal share or portion of the estate so assigned or transferred, such assignment, transfer, deed or conveyance shall be null and void, and considered, in Law and Equity, as fraudulent against creditors”. If the assignment is one “by which any creditor «hall or may be excluded from an equal share” of the estate assigned, the assignment is to be null and void.

Eigueiro was the creditor of Byrd, the assignor. He was such by being the indorsee of Cromelien & Brother, the payees of the note in suit, made by Byrd. Figueiro is entirely “ excluded” from the assignment. Cromelien & Brother are,, it is true, included in the assignment, but not as the owners of this note. They are included in the assignment, as the owners of' a note for $488^6¶. So, as to the note in this case, which is for $175, both Figueiro, the present holder, and Cromelien &. Brother, the former holders, are “excluded” from the assignment.

The assignment, therefore, as to Figueiro, is void.

And the assignment being void, as to him, the property at“tempted to be assigned remained, as to Figueiro, the property-of Byrd, notwithstanding the assignment; and the property being in the hands of Mr. Dawson, it was subject to this garnishment.

The judgment of the Count, to that effect, ought, therefore, to be affirmed.