
    McLin & Henry vs. J. M. Wheeler et al.
    
    1. Cbbditor. Priority of payment. Assignment. Case in judgment. In a contest between two creditors, as to which was entitled to priority of payment out of a fund belonging to their common debtor, it appeared that the fund consisted of a debt due from a railroad company, for work done by the debtor for the company; that one of the said creditors, whose debt was due by note, had received from the debtor an order for the amount upon the treasurer of the company, who had received said order and note as the agent of said creditor, and verbally agreed to pay the amount after a settlement of acoounts between the company and said debtor ; that the other creditor, whose debt was in judgment, had, after a return of an execution nulla lona, and after said transactions, above stated, caused the fund to be attached in the hands of the treasurer for the payment of his judgment; and it is held, that said order and acceptance, as aforesaid, was a valid appropriation and assignment of the funds for the benefit of the first named creditor, and that he was entitled to priority.
    2. Oases Cited. Glodfelter vs. Gox, 1 Snged, 339.
    EROM MONROE.
    This was a bill and cross-bill filed in Chancery at Madisonville for the purposes stated in the opinion. At the June Term, 1858, Chancellor' Van Dyke gave a decree for Wheeler et al., from which McLin & Henry appealed.
    Brown and Cooke, for McLin & Henry.
    Trewhitt and Jarnagin, for Wheeler et al.
    
   Weight, J.,

delivered the opinion of tbe Court.

This is a contest between various creditors of Lewis Carter, as to which shall have priority of payment out of a. fund amounting to $1086 56.

The complainants, McLin & Henry, are attaching creditors of Carter, founding their claim on judgments and executions, with returns of u nulla bona.”

The defendants, Johnson, Bell & Co., and J. M. Wheeler, were creditors of Carter, by notes, and claim that this fund or a sufficient, amount of it to pay them, was assigned and appropriated in the hands of the East Tennessee and Georgia Railroad Company, to pay their debts, before McLin & Henry filed their bill. Carter had done work for this Company, and it owed him, on settlement, the amount of this fund. And it appears, that before the amount due him had been ascertained, he drew orders on R. C. Jackson, who was, at the time, the treasurer of the company, in favor of Johnson, Bell & Co., and Wheeler, for the amount of their respective debts; and that these orders with the notes held by these creditors, were carried to Jackson, the treasurer of the company, and that he verbally agreed to pay them out of what might be due Carter on settlement, and agreed with the creditors to hold the fund for that purpose, and then took and held the orders and notes as their agents, to get the money for them. It is further manifest, that though the orders appeared, on their face, to be upon Jackson, individually, yet they were, in fact, intended to be upon him as treasurer, to reach the fund due Carter, in the hands of the company; and were so regarded by all parties, and were so treated by tbe company. Its answer shows this, and submits that Johnson, Bell & Co., and Wheeler, are entitled to priority in the fund. All these rights attached before McLin & Henry filed their bill. The Chancellor decreed that Johnson, Bell & Co., and Wheeler, were entitled to priority of payment out of the fund. This decree is right, and we affirm it.

There can be no doubt on the facts of the case, that they are entitled to this priority, and that this fund — to the amount of their debts — had been assigned and appropriated to their use. Byles on Bills, 249-255, (top pages) and notes; Gray vs. Milner, 8 Taunton, 739; Clodfelter vs. Cox, 1 Sneed, 339.  