Dawson v. Figueiro

• Decision Date: 31 January 1855
• Docket Number: No. 67.,67.
• Parties: Andrew H. H. Dawson, assignee, plaintiff in error. vs. Fortunito J. Figueiro, defendant.
• Court: Georgia Supreme Court

16 Ga. 610

Andrew H. H. Dawson, assignee, plaintiff in error. vs. Fortunito J. Figueiro, defendant.

No. 67.

Supreme Court of the State of Georgia

JANUARY TERM, 1855.

Certiorari, from Richmond Superior Court. Decision by Judge Holt.

The facts of this case are as follows:

F. J. Figueiro sued John J. Bryd, in the Court of Common Pleas in the City of Augusta, on a note for $175, dated February 23, 1852, payable to Cromelien & Brother, and indorsed by them.

The plaintiff obtained judgment in this action. Pending suit, he had caused a summons of garnishment to be issued to Andrew H. H. Dawson, who answered that he had in his hands assets to the amount of about nine hundred and fifty dollars, which he held by virtue of a deed of assignment, executed on the 7th September, 1852; by which deed, Byrd had conveyed to Dawson the assets in question, to collect and realize the same and "to pay to each and all of said Byrd's creditors the full sum due and coming to them from him, and a full and complete list of whom, with the true amount due to each, is contained in the exhibit hereto annexed, and marked C".

The deed went on to provide, that "if there was not enough to pay off and satisfy each and all my (said Byrd's) creditors, then to pay them pro rata, in proportion to the amount due and owing to each; and if the proceeds, as aforesaid, be more than sufficient to pay and satisfy every one of my credito?s, then to pay and return to me the balance that may be left, if any, after paying all my creditors as aforesaid''.

In the list of creditors annexed to this deed, the name of Figueiro did not appear; the names of Cromelien & Brother did appear as creditors, to the amount of $488 ²⁵/₁₀₀.

The Court of Common Pleas, held that this deed was void, as against creditors, and gave judgment against the garnishee, for the full amount of the judgment against defendant. From this judgment the garnishee sued out a certiorari from the Superior Court; and, on the hearing, the Superior Court affirmed the decision of the Court of Common Pleas: and on this decision error is assigned.

Andrew H. H. Dawson, for plaintiff in error.

G. J. & W. Schley, for defendant.

By the Court.—Benning, J., delivering the opinion.

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...