Francis E. Dana, Receiver, etc., Respondent, v. Henry D. Owen, Assignee, etc., Appellant

Francis E. Dana, Receiver, etc., Respondent, v. Henry D. Owen, Assignee, etc., Appellant. (Argued March 12, 1873; decided June term, 1873.) This action was brought by plaintiff, as receiver of the property and effects of the firm of Wilson & Co., to reach a fund in the hands of defendant Owen, as assignee of the firm of Barney & Co., which is also claimed by defendant Tuck. Barney & Co. were indebted to Wilson & Co. for $3,000, confidential loans; with the view of making a payment thereon, the former firm borrowed of the latter their, note for $8,000, upon which they were to procure the money and pay it to Wilson & Co., Barney & Co. to care for the note when due. They procured the money thereon of defendant Tuck, but, instead of paying it to Wilson & Co., used it. Both firms failed. Barney & Co. made an assignment to defendant Owen for the benefit of creditors, preferring Wilson & Co. $2,000 for borrowed money. Owen declared a dividend of fifty per cent, which was the fund in question. Held, that plaintiff was entitled to the dividend. Rowland M. Hall for the appellant. A. H. Dana for the respondent. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for affirmance. All concur; Lott, Ch. C., not sitting. Judgment affirmed.