repairs to be made; and as such necessary repairs are for the betterment of the property, and add to its value to the gain of the mortgagee, the common-law lien in favor of the mechanic for the value of the repairs is paramount and superior to the lien of the mortgagee. The mortgagee is presumed, in such case, to have contracted with a knowledge of the law giving to a mechanic a lien.

Where the lien is purely a statutory one, or where the property is of such a character that it would not be reasonable to anticipate the necessity for any needed repairs for the period of time the property is to or does remain in the possession of the mortgagor, or when it is but reasonable to expect the mortgagor in person to care for or repair the property,—in such cases, a different rule may prevail.

In the case of Hanch v. Ripley, 127 Ind. 151, it was held that the lien of an agister for feeding horses was not superior to a chattel mortgage; but the agister is given a lien by statute, and it would be the natural presumption that if the mortgagor retained the possession of horses or live-stock, he was to feed and care for the same.

In Jones on Chattel Mortgages, 2d ed., section 473, it is said: "Where the subject of a mortgage was a hack let for hire, and it was described as 'now in use' at certain stables, and it was stipulated that the mortgagor might retain possession and use it, it was regarded as the manifest intention of the parties that the hack should continue to be driven for hire, and should be kept in a proper state of repair for that purpose, not merely for the benefit of the mortgagee, but for that of the mortgagor also, by preserving the value of the security and affording a means of earning wherewithal to pay off the mortgage debt"; and this is the holding in the case of Hammond v. Danielson, 126 Mass. 294.

It is the recognized rule that when the mortgagee of a ship allows the mortgagor to continue in possession as the apparent owner, making it a source of profit wherewithal to pay off the mortgage debt, the mortgagor has the implied right to do all that is necessary to keep the ship in repair, and it is inferred that he has the right to procure such repairs to be made on the usual and ordinary terms, and such terms give the shipwright a lien for the work done and the labor expended: Jones on Chattel Mortgages, sec. 535; The De Smet, 10 Fed. Rep. 483, and note on p. 489; Scott v. Delahunt, 65 N. Y. 128. See, on question of liens, Jackson v. Cummins, 5 Mees.

& W. 341.

In 1 Jones on Liens, section 744, the doctrine is stated to be, that the mortgagor's authority for the creation of a lien on the mortgaged property may be implied from the mortgagor being allowed to remain in possession of the chattel; and the lien of the mechanic is prior to the lien of the mortgagee.

The averments of the complaint show that section 5305 was fully complied with in making the sale. Notice was published in accordance with the requirements of said section, and a sale made in accordance with the sections; a sale under sections 5304 and 5305 passes a complete title to the property to the purchaser. There was no error in overruling the demurrer to the complaint.

The next question presented is as to the ruling of the court on the demurrer to the appellant's plea in abatement. This plea shows that prior to the commencement of this action appellant had filed his complaint in the circuit court of the United States for the district of Indiana against the appellees in replevin, alleging that the appellant had a special property in the engine and tender by reason of the mortgage, and was entitled to the possession of the same by reason of the failure to comply with the conditions of the mortgage; and the appellees had alleged in their answer in said cause the same service performed on the engine and tender, the sale, and that they were the owners, alleging in said answer the same facts set up in their cross-complaint in this action, and that said cause was pending at the time of the commencement of this action and the filing of the cross-complaint, and is still pending; also, alleging other formal matters showing that the United States court had jurisdiction in said action of replevin. The appellant first appeared to the cross-complaint, and filed an answer in bar, and then, with leave of court, withdrew the answer in bar, and filed an answer in abatement.

That when a party first files an answer in bar he cannot afterwards file an answer in abatement, even by leave of court, has been settled by a decision of this court in the case of Brink v. Reid, 122 Ind. 257; and having been so held, and the stat ute, section 365, Revised Statutes of 1881, providing that answers in abatement must precede and cannot be pleaded with an answer in bar, we deem it best to adhere to the decision in that case. Pleas in abatement being dilatory pleas, a strict rule should be held in regard to them. The answer in abatement in this case having been filed after the filing of an an

swer in bar, the same was subject to be struck out on motion. The same result was reached by sustaining a demurrer thereto, and there is no available error in the ruling.

The next alleged error discussed is the ruling of the court in sustaining appellees' demurrer to the second paragraph of appellant's answer.

This paragraph disclaims any intention on the part of appellant to affect in any way the appellees by the foreclosure of the mortgage, and states facts showing that the engine and tender were personal property in the hands of the appellees.

It is contended that this paragraph of answer is good, for the reason that the appellees, having the possession, cannot maintain a suit to determine and quiet their title. However this may be as to maintaining an independent suit, in this case the appellant, in his complaint, sought a foreclosure of his mortgage upon the engine, and the appellees were made parties to the suit, and filed their cross-complaint, asking to have their ownership declared, and to enjoin and prevent a foreclosure against them as to the engine and tender. After the filing of the cross-complaint, appellant dismissed his case as to the appellees. This did not take appellees' cross-complaint out, and the appellees had the right to have their title to the property settled and determined as between them and the mortgagee.

The facts alleged in the cross-complaint entitled the appellees to some relief, and the answer did not state facts showing they were not entitled to any. No objection is made as to the form of the judgment.

The next objection urged relates to the ruling of the court on the motion to separately docket and try the case on the cross-complaint; but it is conceded that this was a matter within the discretion of the trial court, and not a matter to which the appellant was entitled as of right. There was no error in this ruling.

The next question presented arises on the ruling of the court in overruling the motion for a new trial. It is contended that the evidence as to the notice and sale of the engine and tender was improperly admitted, for the reason that such sale was unauthorized. This objection is not well taken. The statute authorized the sale.

Lastly, it is urged that the evidence does not support the

finding. There 18 sufficient evidence to support the finding, and in such a case it will not be disturbed by this court. There is no error in the record.

Judgment affirmed, with costs.

MECHANIC'S LIEN-SERVICES. An artisan who has bestowed his labor upon property held by him as bailee has a lien thereon for the value of his services: Grinnell v. Cook, 3 Hill, 485; 38 Am. Dec. 663, and note; Arians v. Brickley, 65 Wis. 26; 56 Am. Rep. 611; note to McIntyre v. Carver, 37 Am. Dec. 522, 523; Phillips v. Freyer, 80 Mich. 254; Boyce v. Poore, 84 Ga. 574. A laborer's general lien on personal property takes precedence over ordinary mortgages, even those created prior to the contract for labor: Allred v. Haile, 84 Ga. 570. A mechanic's lien is superior to the landlord's lien for rent, as well as to a chattel mortgage placed upon the improvements after they are made, but before proceedings are instituted to establish the mechanic's lien: National L. Co. v. Bowman, 77 Iowa, 706. But the lien of a chattel mortgage upon a horse is superior to the subsequently acquired statutory lien of a liv. ery-stable keeper, even though the latter had no knowledge of the existence of the mortgage: McGhee v. Edwards, 87 Tenn. 506. Contra, Smith v. Stevens, 36 Minn. 303. The bona fide purchase of personalty in payment of an antecedent debt, prior to its seizure under a laborer's lien, will take precedence over such lien, no notice thereof having been brought home to the purchaser: Forbes v. Chisholm, 84 Ga. 641.

CARR V. STATE.

[127 INDIANA, 204.]

A STATE ENTERING INTO CONTRACTS lays aside its attributes of sovereignty, and binds itself, substantially, as one of its citizens does when he enters into a contract.

CONTRACTS OF A STATE ARE INTERPRETED as the contracts of individuals are, and controlled by the same laws.

A STATE HAS NO POWER TO ANNUL OR IMPAIR ITS OWN CONTRACT. Its legislature may, by failing to make an appropriation, defeat the pay. ment of a just claim or block the wheels of government, but it has, under the constitution, no right to do so.

BETWEEN A CONTRACT OF THE STATE AND ONE OF ITS CITIZENS THERE IS THIS DIFFERENCE, that the latter cannot defeat the enforcement of a contract, while the former may, because not liable to suit without its consent, and not compellable to make appropriations to provide means of payment.

CREDITORS ACCEPTING OBLIGATIONS OF THE STATE ARE BOUND TO KNOW that they cannot enforce their claims against the state directly, nor against its officers, when no appropriation has been made as the constitution requires.

IF NO APPROPRIATION HAS BEEN MADE TO PAY A DEBT OF A STATE, NO ACTION CAN LIE AGAINST THE OFFICERS OF THE STATE THEREON. Unless there is an appropriation, courts have no power to enforce a contract of a state, though they do not doubt its validity.

APPROPRIATION. PROMISE TO PAY A DEBT OF A STATE, contained in a certificate thereof issued by its authority, is not an appropriation. APPROPRIATION NEED NOT BE MADE IN EXPRESS TERMS. It is sufficient that an intention to make it is clearly evinced by the language of the statute, or that no effect can be given to the statute unless it is considered as making the necessary appropriation.

APPROPRIATION FOR PAYMENT OF SALARY. — If the salary of a public officer

is fixed and the times of payment prescribed by law, no special appropri ation is necessary to authorize the issuing of a warrant for its payment. APPROPRIATION. IF A STATUTE SETS APART THE MONEYS IN THE STATE DEBT SINKING FUND for the payment of the principal of certain indebtedness of the state, this is a valid appropriation; and if that statute is afterwards abrogated by another statute, declaring that the state sinking fund shall be discontinued, merged in, and constitute part of the general fund, and all sums of money payable out of the state sinking fund shall be payable out of the general fund of the state treasury, this latter statute is also an appropriation.

CONTRACT LAW CHANGING PLACE OF PAYMENT. The holder of a certifi cate of indebtedness payable at a designated place cannot be deprived of his rights by a subsequent law or order making it payable elsewhere, and declaring if it is not there presented for payment interest thereon shall cease. The only method in which a debtor can escape liability is by having money ready for the creditor at the place of payment named in the contract.

CONSTITUTIONAL LAW.

A STATUTE CANNOT BE CHANGED OR REPEALED BY A SUBSEQUENT ACT WHICH IS VOID because unconstitutional. An unconstitutional act can neither tear down nor build up, neither create new rights nor destroy existing ones.

CONSTITUTIONAL LAW. - STATUTE ATTEMPTING TO WITHDRAW AN APPRO-
PRIATION BY ANNULLING A CONTRACT cannot accomplish such purpose,
because the legislature has no power to annul contracts.
INTEREST, WHEN DUE ON A CONTRACT OF THE STATE.

If a statute authorizes the issue of certificates for the payment of the principal and interest to which the faith of the state is pledged, and declares that the interest shall be paid half-yearly at the city of New York, but that if interest is not demanded before the expiration of thirteen months after it falls due then it shall be demandable only at the treasury of the state, such certificates bear interest to their maturity.

INTEREST. A SOVEREIGN IS NOT BOUND TO PAY INTEREST unless it has contracted so to do.

RATE OF INTEREST ON CONTRACTS OF THE STATE AFTER THEIR MATURITY is the rate mentioned in the statute authorizing such contracts, and not the rate specified in the general statutes of the state giving interest on contracts.

INTEREST ON INTEREST IS NOT ALLOWABLE ON A CONTRACT OR OBLIGATION of a State, unless it has expressly promised to pay such interest. APPROPRIATION TO PAY THE PRINCIPAL AND INTEREST OF A BOND of a state does not authorize the payment of interest upon interest.

A. G. Smith, attorney-general, and J. H. Gillett, for the appellants.

I. P. Gray and P. Gray, for the appellee.

AM. ST. REP., VOL. XXII. — 40