8 Cal. 540 | Cal. | 1857
The only point which seems material in this case, is whether Seaman could gain a preference over other creditors by his superior diligence. In the case of Adams & Co. v. Hackett & Casserly, we said, “ that until a dissolution has been judicially declared, and a receiver ordered to make a pro rata distribution of the partnership assets among the creditors, they are not prevented from resorting to adverse proceedings; and that when a creditor does resort to such proceedings, he may thereby gain a preference over those creditors who are less diligent.” The conclusions arrived at in this opinion, were adopted by this Court, in the subsequent case of Adams v. Woods & Haskell.
The present case seems clearly to fall within the principles settled by those cases. Seaman, by his diligence, gained a priority over other creditors, and was entitled to be'first paid, and the defendant Minturn was justified in the payment he made to the sheriff. From the same principle, it follows, that Minturn had the right to purchase the cross-demands. The owners of these cross-demands had the right to have gained a priority over other creditors by suit; and they had the right to sell to Min-turn, who was a debtor to Adams & Co., and not to the creditors of that firm. At the time the purchase was made, no decree of dissolution had taken place—the proceedings were virtually suspended, and the creditors acquired no equitable lien upon the fund. As the, owners of these cross-demands could gain priority by suit, there was no propriety or justice in compelling them to
The Court below should have allowed the defendant credit for the payment made by him upon the execution, and also for the amount of the cross-demands.
Judgment reversed, and cause remanded, for further proceedings.
