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fied to follow the adjudications of our own court. In State v. Aetna Ins. Co., 117 Ind. 251, it is said by Elliott, J., when considering the question of superiority of a statutory lien over a prior mortgage lien: “The statute must determine the character and extent of the lien. It is not necessary that it should, in express terms, declare that the lien shall be a paramount one, for, if the intention can be gathered from the general words and purpose of the statute the courts will give it effect.” This is in harmony with the principle asserted by the Supreme Court of Massachusetts which says, in Dunklee v. Crane, 103 Mass. 470: “The statute contains no express provision that the lien shall attach and have priority over mortgages and other incumbrances created after the contract, but such is the necessary implication." See, also, Mayor et al. v. O'Neill, 32 N. J. Eq. 386.
It is true as urged by appellant's counsel, that the Bass case does not decide that the labor lien is superior to a prior mortgage, that question not being involved, but it does not decide the debt is a charge against the property in the bands of a purchaser for value. The word “lien” includes every case in which personal or real property is charged with the payment of a debt. Anderson Law Dict. 623. In Warren v. Sohn, 112 Ind. 213, it was claimed that mortgage liens were superior to subsequent minor's labor liens, although the statute declared that such labor liens should be paramount to and have priority over all other liens except taxes; yet the court decided that the statute must be given effect, and the mortgages yield to the labor liens. Here the statute directs that the labor claims shall be preferred, and shall be “first paid in full." It being established as it is by the Bass case, that the statute gives a lien for the labor claim, then it seems to us the intent that it shall be a paramount lien is clearly expressed. If it is to be “first” paid in full, we do not well see how the mortgage can come in before it. When the mortgagee accepted his mortgage, he inust be deemed to have done so with knowledge that if the business was continged, and the contingency contemplated by the statute should occur, then the labor debts would be preferred, and must be first paid. The law entered into the mortgage contract as a silent, but potent. factor, and the mortgagee accepted it subject to sucb rights as might accrue to others under the law. Warren v. Sobn, supra; Farmers' Loan & Trust Co. v. Canada, etc., Ry. Co., 127 Ind. 264, 26 N. E. Rep. 784; Hancock v. Yaden, 121 Ind. 366, 23 N. E. Rep. 253. As said in some of the cases, it is wholly voluntary upon the part of the mortgagee whether he will accept a mortgage with the limitations by law incorporated therein. In Provident Inst. for Savings v. Jersey City, 113 U. S. 506, 5 Snp. Ct. Rep. 612, it was decided that a statutory lien for water rent was superior to mortgages executed prior to the attaching of the supply pipes to the mains. It is said: “When the complainant took its mortgages, it knew what the law was. It knew that by the law, if
the mortgaged lot sbould be supplied with Passaic water by the city authorities, the rent of that water, as regulated and exacted by them, would be a first lien on the lot. It chose to take its mortgages subject to this law.” To the same effect are Vreeland v. O'Neil, 36 N. J. Eq. 399, and Vreeland v. Mayor, etc., 37 N. J. Eq. 574. There the statute made the water rent assessment a “lien from the time of the confirmation thereof until paid, notwithstanding any devise, descent, alienation or other incumbrance thereon." This language was adjudged to make the water rent paramount to prior mortgages, although it was not so expressly declared in the statute. The principle upon which a mortgagee is subordinated to a statutory lien authorized and made superior by a statute in force when the mortgage is executed is not by any means new or novel. Nor does Indiana stand alone in thus providing security for the wage earners, who depend upon their daily toil for support. For many centuries, in admiralty, the rights of seamen to their wages have been held superior to the mortgagees of the vessel. The J. A. Brown, 2 Low. 464, Fed. Cas. No. 7,118; 2 Jones, Liens, $ 1775. In Mississippi the liens of agricultural laborers are made superior to prior mortgages. Buck v. Payne, 52 Miss. 271; Buck v. Payne, 50 Miss. 648. In Michigan the wages of miners are given liens paramount to all others. McLaren v. Byrnes, 80 Mich. 275, 45 N. W. Rep. 143. In that State, as in ours no notice of lien need be given, but the court says: "All persons are bound to take notice that unpaid laborers for a mining corporation in the Upper Peninsula have a lien for their labor upon all the real and personal property of the corporation in that portion of the State.” In Iowa we find the decisions exactly in harmony with our
There is a statute similar to ours substantially, identical in terms so far as it relates to the matters herein involved. It does not in terms create a lien, nor declare it paramount to prior mortgages, but provides, as does ours, that the debts owing to laborers “shall be considered and treated as preferred debts, and such laborers or employees shall be preferred creditors and shall first be paid in full, and if there be not sufficient to pay them in full, then the same shall be paid to them pro rata after paying costs." In Reynolds v. Black (Iowa), 58 N. W. Rep. 922, the question was presented as to wbether, where the property had been taken by mortgagees, the laborers had any lien, and, if so, whether it was superior to the mortgagees. There, as here it was "contended that no lien is given to the laborer, that to give him preference over existing liens is to displace such liens, and that the preference only applies to what is left after satisfying existing liens;" but the court said, “to so construe this statute would largely defeat its manifest purpose," and adjudged that there was a lien superior to the mortgagees. The doctrine of this case was reaffirmed by St. Paul, etc. Co. v. Diagonal Coal Co. (Iowa), 64 N. W. Rep. 606.
CENTRAL LAW JOURNAL.
le mortgaged lot should be supplied with il sale water by the city authorities, the read lat water, as regulated and exacted by thea ould be a first lien on the lot. It chose to tales i mortgages subject to this law." To the un fect are Vreeland v. O'Neil, 36 N.J. Eq. 34 id Vreeland v. Mayor, etc., 37 N. J. Eg. Bere the statute made the water rent adessors lien from the time of the confirmation theret itil paid, notwithstanding any devise descent legation or other incumbrance thereon." This nguage was adjudged to make the water mea: ramount to prior mortgages, although it ** 1 90 expressly declared in the statute. The inciple upon which a mortgagee is subordiled to a statutory lien authorized and made Perior by a statute in force when the moriger executed is not by any means new or nofel
. ir does Indiana stand alone in thus providing urity for the wage earners, who depend ufer ir daily toil for support. For many centuries
, admiralty, the rights of seamen to their warto ie been held superior to the mortgagees of the sel. The J. A. Brown, 2 Low. 464. Fed. Ci .7.118; 2 Jones, Liens, $ 1775. In Mississippi liens of agricultural laborers are made sure. to prior mortgages. Buck v. Payne, il Vix ; Buck v. Payne, 50 Miss. 618. In Michiga wages of miners are given liens paramoodi by others. McLaren v. Bernes, 80 Micb. 273, 6 1. Rep. 143. In that State, as in ours no si
of lien need be given, but the court caps:
We are not able to perceive that any general dis- 115 Ind. 224, 17 N. E. Rep. 290; Palmer v. Hayes, aster will be brought upon the business interests 112 Ind. 289, 13 N. E. Rep. 882; Hildebrand v.
McCrum, 101 Ind. 61. We are unable to see that of the community by our holding. The lien does not attach save in those cases where there has the degree of insufficiency or informality of the been a seizure by an officer, or a collapse of the demurrer affects the application of the principle business; and it is, under this statute, in the ab- thus established. sence of fraud, limited to the property then be- It is argued that upon the principle, declared
in Eversole v. longing to the debtor, Thus, the ordinary every
Chase, 127 Ind. 297, 26 N. E. Rep. day transfer and sale of property in the usual 835, section 7051, Rev. St. 1894, is not in force, course of a going business will not be af- because it was an amendment of a statute (section fected. The smallness of the amount also 5206, Rev. St. 1881) passed in 1879, which had serves to lessen our apprehension as to the been repealed by implication by the passage of evil results to follow from the application the act of March 3, 1885 (Elliott's Supp., § 1598, to this case of the ordinary rules of law, and the being section 7058, Rev. St. 1894). “Repeals by giving effect to the plain letter of the statutes as implication are not favored in the construction to the order of precedence. A result which af- of statutes,” yet “it is ordinarily true that the fords to the day laborer protection to the amount enactment of a new statute covering the whole of $50 does not appear to us so bighly inequitable subject matter of an older statute, and containing as to call for any strained or fanciful construction provisions that cannot be reconciled with it, operof the statute. That he "shall be a preferred ates as an implied repeal of the older one. Robcreditor, and shall first be paid in full," seems to inson v. Rippey, 111 Ind. 112, 12 N. E. Rep. 141." us simple, plain English, easily understood, the This is the rule declared by this court, through meaning of which would not ordinarily be mis- Davis, J., in Allen v. Town of Salem, 10 Ind. taken by the average man. Neither is the statute App. 650, 38 N. E. Rep. 425. It was further said to receive a strict construction as being in dero- in the same case: “In order to effect such repeal gation of the common law. It is remedial in its by implication, it must appear that the subsenature. As was said by the supreme court in quent statute revised the whole subject-matter of speaking of a statute similar in character, and en- the former one, and was intended as a substitute acted for a similar purpose, viz: “to secure to for it, or that it was repugnant to the old law." employees of corporations an efficient remedy for The act of March 3, 1885, makes no provision for, the collection of money due them for wages.
and does not cover, the subject of labor liens Such statutes are not only constitutional, but they where the property has not passed into the hands are to be liberally construed, with a view of ren- of an assignee or receiver, but is confined to dering effectual the purpose of the statute.” In those cases where it does come into the hands of any event, the law is plain, and, if not wise, the an assignee or receiver. It falls far short of covremedy is by legislative repeal, rather than by ju
ering the whole subject matter of the act of 1879, dicial nullification. Assuming, without deciding,
nor is there any good reason why both should that the complaint must show a transfer of all
not stand together. Upon the principles of law the property used in the business, we are of opin
announced in the Town of Salem Case, supra, and ion that this fact sufficiently appears. The aver
the authorities therein cited, we are of opinion ment, in substance, is that Bell, on Oct. 25, 1894,
that the act of March 3, 1885, did not repeal the had a mortgage on all the chattels in the barn,
law of 1879. Judgment affirmed. and that this property was turned over to him. NOTE.- A common-law lien is a right to retain pos. The answer of estoppel was clearly bad. It
session of property belonging to another, until the counted upon appellee's failure to make known
claim of the party in possession, against the owner is bis claim. Appellant's want of knowledge of its
satisfied. 2 Abbott's Law Dic. Such are the liens of existence is nowhere alleged. This was essential
workmen, on property upon which they have per: to enable him to obtain the benefit of the appel
formed service; of pawn brokers, of innkeepers and lee's silence as an estoppel. Roberts v. Abbott,
of carriers upon property in their possession for 135 Ind. 83, 26 N. E. Rep. 565; Bank v. Williams,
charges. Story on Bailments, secs. 440, 303; Edwards 123 Ind. 423, 26 N. E. Rep. 75. Earlier cases
on Bailments, sec. 420, 245 and 473. These and other held that it was reversible error to sustain a de
liens at common-law, are inseparable from possession,
and are lost if it is surrendered. An equitable lien fective demurter to an answer, without reference
may be defined to be a right not recognized at law, to to its sufficiency. Gordon v. Swift, 39 Ind. 212;
have a fund or specific property, or its proceeds, apDngdale v. Culbertson, 7 Ind. 664. Later and
plied in whole or in part to the payment of a parbetter considered decisions, however, declare the
ticular debt or class of debts. 2 Story, Eq. Jur. sec. law to be that although the demurrer be insuffi
1215; Gladstone v. Berkley, 2 Meriv. 403. Such liens
are based either upon express contract or the abstract ruled without error, yet if it is in fact sustained,
principles of justice. They are upheld against all and the pleading is really bad, then no harmful
other interests except bona fide mortgages or vendees error occurs. Wade v. Huber, 10 Ind. App. 417,
without notice. Story, Eq. Jur. sec. 1217. They are 38 N. E. Rep. 351; Foster v. Dailey, 3 Ind. App.
usually enforced when upon chattels, by a sale of the property to which they are attached. Equity begins where the law leaves off, and allows liens without reference to possession and are termed "equitable lieps" and applicable to those liens which only exist
I persons are bound to take notice that . 1 laborers for a mining corporation in the Der Peninsula have a lien for their labor opin he real and personal property of the corpora
in that portion of the State." In lowz at the decisions exactly in harmony with me
There is a statute similar to ours to tially, identical in terms so far as it relates # matters herein involved. It does not in ters: te a lien, nor declare it paramount to priar tgages, but provides, as does ours, that td s owing to laborers shall be considerei ani Hd as preferred debts, and such laboreri mployees shall be preferred creditors 221 first be paid in full, and if there be not sutito pay them in full, then the same shall be to them pro rata after paying costs." In holds v. Black (lowa), 58 N. W. Rep.se liestion was presented as to w betber, where property had been taken by mortgagees. ile ers had any lien, and, if so, wberber is ress rior to the mortgagees. There, as bere ii 'contended that no lien is given to the } ; that to give him preference over existing is to displace such liens, and that the prefe only applies to what is left after satisfixisting liens;" but the court said. "t * rue this statute would largely defeat it est purpose," and adjudged that there is superior to the mortgagees
. The doctrine s case was reafirmed by St. Paul, etc. Co. r. inal Coal Co. (Iowa), 64 N. W. Rep. I.
cient to test the pleading, and might be over
, 30 N. E. Rep. 4; Firestone v. Werner, 1 Ind. App. 293, 27 N. E. Rep. 623; Board v. Gruver,
in equity. 2 Story, Eq. Jur. sec. 1215; Bis. Prin. Eq. sec. 351, Equitable liens are very frequently allowed upon the principle that equity looks upon that as done which ought to be done. Reed v. Gillian, 2 Desaus. Eq.(S.C.), 552. A lien is sometimes referred to as a pledge. But a pledge is not only a lien but also something more. It is a deposit by the debtor of per: sonal property by way of security, with an implied power in the creditor to sell it upon default. In a lien, as in a pledge, the general property remains in the debtor, and the creditor had only a special property. A pledgee bas such an interest in the thing pledged that he may transfer it to another, and he may enforce his security by sale without the aid of a court. A lien is neither a jus ad rem nor a jus in re. It is neither a right of property in the thing, nor a right of action for the thing. It is simply a right of detainer. Bruce v. Marlborough, 2 P. W. 491. In a legal sense a lien imports that a person is in posses. sion of the property of another, and that he detains it as security for some demand which he has in respect of it. A lien therefore implies: 1. Possession by the creditor. 2. Title in debtor. 3. A debt arising out of the specific property. The case above depends upon the later division and is denominated a lien by statute. By recent legislation many of the liens recognized by the common-law, and many of those as. serted in equity, have been materially enlarged in their scope, or made more effectual by provisions for their enforcement. Modern legislation bas also in many instances gone beyond the liens previously rec. ognized at law or in equity, and has created a great number of new liens, and it would seem that the Indiana statute had been extended to its full constitutional limit for the protection of all persons who labor for wages. A lien created by statute may be taken away or amended by a subsequent statute. Frost v. Ilsey, 54 Me. 345. An amendment seems to have been made to the Indiana statute for the benefit of a wage worker, notwithstanding such a lien is no part of the contract, but merely an incidental accompaniment of it, or means of enforcing ít, a remedy given by law, and, like all matters pertaining to the remedy, and not to the essence of the contract, until vested rights or preferred claims are settled or prorated. A etatutory lien, without possession, has the same operation and efficacy that a common-law lien has with possession. Beall v. White, 94 U. S. 382; Grant v. Whitwell, 9 Iowa, 152. Statutory liens are regulated by the law of the forum, and connot be claimed by virtue of the law of another State. Swasey y. Steamer Montgomery, 12 La. Ann. 800. A lien is either specific or general. The former attaches to specific property as security for some demand which the creditor has in respect to that property, such as work done or ma. terials furnished in repairing or constructing that specific thing. Such a lien may be given by commonlaw or by statute. But a specific lien upon property cannot be enforced for the payment of other debts due claimant by the owner, at least without a special agreement to that effect. Nevan v. Romp, 8 Iowa, 207. A general lien is one arising not from some par. ticular demand, but for a general balance of accounts. A general lien exists: First, where there is an express contract; second, where it is implied from the usage of trade; or tbird, from the manner of dealing between the parties in the particular case. Green v. Farmer, 4 Burr, 2214, 2221, Liens have always been favored by the courts. Lord Mansfield said: “The convenience of commerce and natural justice are on the side of liens. Green v. Farmer, supra. As between debtor and creditor the doctrine of lien is so
equitable that it cannot be favored too much. Jacobs v. Latour, 5 Bing. 130.
Superiority of Liens. It is not necessary that a stat. ute shall, in express terms, declare that the lien shall be a paramount one. If it determines the character and extent of the lien, and the intention can be gath. ered from the language and purpose of the statute, courts will give it such effect. State v. Ins. Co., 117 Ind. 251. It is a necessary implication that such lien shall attach and have priority over mortgages and incumbrances created after the contract with a laborer, notwithstanding the statute contains no express provision thereon. Dunklee v. Crane, 103 Mass. 470. In Pennsylvania a different rule prevails. A statute providing that all moneys due for labor for any time not more than six months preceding the sale of the property, by execution or otherwise, on account of the insolvency or death of the employer, shall be a lien on such property, and first paid out of the proceeds of such sale, does not give a creditor for wages, a lien op personalty transferred in good faith by an insolvent employer in payment of his debts. The sale intended by the statute is a judicial sale. Wilkinson v. Patton, 162 Pa. 12. When one acquires a mort. gage lien on property with knowledge of the use and purposes to which such property is put by its owner, and without notice that, under the statutory provisions giving persons employed in and about the property a prior lien on such property for labor, such property is liable to be subjected to after. acquired liens for labor and such labor liens will be paramount to and have priority over such mortgage liens. Warren et al. v. Sobn et al., 112 Ind. 219. The lien of a mortgage on a railroad, given to a contractor before its construction, and assigned by him, is inferior to liens of laborers and material men for the snb. sequent construction of the road. Farmers' Loan & Trust Co. v. C. & St. L. Ry. Co., 127 Ind. 264, 26 N. E. Rep. 784. On the other hand a debt may be a preferred debt in a sense, and yet not be superior to another debt for which a lien is given, and so a cred. itor, may be a preferred creditor and still his claim may not be superior to that of lien, holders. The word "preferred” is a relative term. It necessarily refers to something else and means that the thing to which it is attached bas some advantage over another thing of the same character, which but for such advantage would be like the other. State v. Cheraw & Chester Ry. Co., 16 S. C. 524. A preferred debt or claim which is not a lien is superior only to another preferred debt or claim of the same character, or that is not a lien. It is never superior to a lien, unless made so expressly by the terms of the law. A physician's bill for services in attending the decedent in his last sickness is a preferred claim or debt and the physician holding such claim is a preferred creditor; but it cannot be said that his claim is superior to that of a mortgage or other lien created in the life time of the decedent. The same is true of funeral expenses, of administration, etc. Such a claim is pre. ferred simply to the general debts of the decedent, l. e., to debts or claims tbat are not liens; and it becomes a charge upon the assets of the estate, and are preferred to such other debts or claims tbat are not liens, just as a claim of the character named in the opinion above, is a charge upon the assets of the insolvent, and is preferred to other debts not liens; hence, it does not become superior to those claims which are liens. Therefore, the Indiana statute in question, cannot by any process of reasoning be construed so as to make the claim of a laborer u lien superior and paramount to all other liens, of whatever character
quitable that it cannot be favored too much. Jube
Latour, 6 Bing. 130, Superiority of Liens.-- It is not necessary that a shat te shall, in express terms, declare that the lien skal es paramount ope. If it determines the characta ad extent of the lien, and the intention can be gati red from the language and purpose of the stataka purts will give it such effect. State v. Ins. Com II d. 251. It is a necessary implication that such lat hall attach and have priority over mortgages and its ambrances created after the contract with a laborer, ptwithstanding the statute contains no express piny sion thereon. Dunklee v. Crane, 103 Mass. 410. L ennsylvania a different rule prevails. A statia roviding that all moneys due for labor for any time at more than six months preceding the sale of the operty, by execution or otherwise, on account of e insolvency or death of the employer, shall be non such property, and first paid out of the eds of such sale, does not give a creditor for was, ien on personalty transferred in good faith by se lo vent employer in payment of his debts. The sale ended by the statute is a judicial sale. Wilkitsee
Patton, 162 Pa. 12. When one acquires a mer gelien on property with knowledge
and purposes to which such property is pat its owner, and without notice that, under the tutory provisions giving persons employed in and put the property a prior lien on such property for or, such property is liable to be subjected to alter uired liens for labor and such labor liens will be famount to and bave priority over such mortege 18. Warren et al. v, Sohn et al., 112 Ind. 219. T 1 of a mortgage on a railroad, given to a contractor ore its construction, and assigned by him, is inter to liens of laborers and material men for the sob
uent construction of the road. Farmers' Loss 2 ist Co. v. C. & St. L. Ry. Co., 127 Ind. 264, 3N. E b. 784. On the other hand a debt may be a pre red debt in a sense, and yet not be superior to er debt for which a lien is given, and so a ered
may be à preferred creditor and still is
may not be superior to that of her ilers. The word "preferred” is a relative ters ecessarily refers to something else and means that thing to wbich it is attached bas some advantage
another thing of the same character, which hat such advantage would be like the other. State 1. raw & Chester Ry. Co., 16 S. C. 624. A preferred 1 or claim which is not a lien is superior only 3 her preferred debt or claim of the same character, bat is not a lien. It is never superior to a lie, ss made so expressly by the terms of the law, 1 sician's bill for services in attending the decedent is last sickness is a preferred claim or debt and physician holding such claim is a preferred erede
but it cannot be said that his claim is superior at of a mortgage or other lien created in the life
of the decedent. The same is true of funeral nses, of administration, etc. Such a claim is pite d simply to the general debts of the decedent,
debts or claims that are not liens; and it becomes irge upon the assets of the estate, and sre pot a to such other debts or claims that are not lies as a claim of the character named in the opinia
is preferred to other debts not liens, hence, l not become superior to those claims which are
Therefore, the Indiana statute in question ake the claim of a laborer a lien superior aš
veyed to another for the purpose of securing a debt; be made to cover such a case is disputed. If such a
and, upon her go doing, may have the land sold under her execution, and take its proceeds in preference to a
pt by any process of reasoning be constraed
mount to all other liens, of whatever character
judgment creditor of the intestate, whose judgment was obtained before the execution of the security deed. -COMMERCIAL BANK OF AUGUSTA V. BURCKHALTER, Ga., 25 S. E. Rep. 917.
4. ADVERSE POSSESSION - Parental Relation.-As between parties sustaining parental and filial relations, the possession of the land of the one by the other is presumed to be permissive, and not adverse. To make such possession adverse, there must be some open as. sertion of hostile title, other than mere possession, and knowledge thereof brought home to the owner of the land.-O'BOYLE V. McHugh, Minn., 69 N. W. Rep. 37.
5. APPEALS-Election of Remedies.-By Act March 3, 1891, a party seeking to appeal is not put to an election of remedies where a constitutional question arises, but has a right to raise such question by a resort to the supreme court, under the fifth section, and, while such appeal is pending, to avail itself of the defenses permissible under the sixth section by an appeal to the circuit court of appeals; but the latter court will continue the cause to await the decision of the su. preme court.-PULLMAN'S PALACE-CAR CO, V. CENTRAL TRANSP, Co., U.S.C.C. of App., Third Circuit, 76 Fed. Rep. 401.
6. APPEAL Mandamus. - Mandamus will isgue to direct the execution of a judgment of the circuit court of appeals, notwithstanding a second appeal for matter arising previous to that judgment.-IN RE PIKE, U.S.C. C. of App., First Circuit, 76 Fed. Rep. 400.
7. ASSIGNMENT FOR BENEFIT OF CREDITORS.-A fail. ure to comply with Pub. St. ch. 201, $ 8, which requires a debtor, within 10 days after making an assignment, to file schedules of his creditors and of all his estate, does not invalidate the proceedings.-APPEAL OF How. LAND, N. H., 35 Atl. Rep. 943.
8. ASSIGNMENT FOR BENEFIT OF CREDITORS. An in. solveot, after an assignment for the benefit of cred. itors, agreed with a creditor bank, if the latter would furnish the funds to pay off the claims of all other creditors who would agree to compromise, the as. signed property should be transferred to such bank for the payment of its claim and the amount so advanced, in full. Over 90 per cent. of the claims were thus compromised, and the bank, after paying the amount adyanced and its own claim in full, recon. veyed the property to the insolvent: Held, that such reconveyance was a fraud on the rights of a creditor not accepting the compromise, rendering the bank liable for the amount of its claim to the extent of the property so transferred,-AMERICAN EXCHANGE NAT. BANK V. WALKER, III., 45 N. E. Rep. 271.
9. ATTACHMENT – Property Subject.-Property in the hands of the sheriff, under a mandate in claim and de. livery, which requires him to take the property and deliver it to plaintiff, is not subject to attachment.WILLIAMSON V. NEALY, N, Car., 25 S. E. Rep. 953.
10. ATTORNEY AND CLIENT - Ratification. - A client may ratify the act of his attorney in commencing suit, so as to prevent a dismissal for want of original authority on the part of the attorney.-ROBERTS V. DENVER, L. & G. R. Co., Colo., 46 Pac. Rep. 880.
11. BANKS AND BANKING - Collections-Insolvency.When an instrument is intrusted to a bank for collec. tion, the bank secures no title thereto, and no right to bold it in any other capacity than as agent.---NATIONAL BANK OF COMMERCE OF SEATTLE V. JOHNSON, N. Dak., 69 N. W. Rep. 49.
12. BANKS AND BANKING Officers Fraudulent Re. ceipt of Deposits. – Const. Wash. art. 12, $ 12, making individually liable an officer of a bank receiving de. posits after he has knowledge of the bank's insolvency, is sell.executing. MALLON V. HYDE, U. 8. C. 0. (Wash.), E. D., 76 Fed. Rep. 388.
13. BENEVOLENT SOCIETY Membership CertificateBeneficiary.-Where a member of a mutual benefit as. sociation makes a proper change in the beneficiary of his membership certificate, and duly notifies the asso.
ciation, the failure of the directors to consent to the change, and to record it as required by the by.laws, because no meeting occurred between the notice and the member's death, cannot defeat the beneficiary's rights.-SANBORN V. BLACK, N. A., 35 Atl. Rep. 942.
14. CARRIERS-Injuries to Passenger on Street Car.The concurrent facts of the happening of an accident to a passenger on a street car and the exercise by the passenger of ordinary care do not raise a presumption of negligence against the carrier, so as to shift the burden of proof on it to show that it was not guilty of negligence, where plaintiff's evidence shows that the accident was due to a wagon driven so close to an open car as to strike plaintiff's foot. CHICAGO CITY Ry. Co. v. ROOD, III., 45 N. E. Rep. 238.
15. COMPROMISE. The compromise of a doubtful claim is a sufficient consideration to support a promis. sory note fairly given in settlement of the controversy compromised. – JOHNSON V. REDWINE, Ga., 25 S. E. Rep. 924.
16. COMPROMISE Consideration. Mutual concessions for the prevention of litigation are a valid consideration for a compromise settlement between the heirs and the legatees of a decedent. - MCDOLE V. KINGSLEY, III., 45 N. E. Rep. 281.
17. CONSTITUTIONAL LAW-Election and Voters.-The act of April 17, 1896 (92 Ohio Laws, p. 185), which pro. bibits the name of any candidate for office from being placed upon the official ballot more than once, is a valid law.-STATE V. BODE, Ohio, 45 N. E. Rep. 195.
18. CONSTITUTIONAL LAW Taxation - Situs of Rail. road Rolling Stock.-It is no objection to the imposi. tion of a State tax upon railroad rolling stock used partly within the State that the same is engaged as a vehicle of interstate commerce, or that its legal situs is in another State or territory, where taxes on it have been paid.-REINHART V. MCDONALD, U. $. O.O., N. D., (Cal.), 76 Fed. Rep. 403.
19. CONTEMPT OF COURT-Power to Punish.-The general assembly is without authority to abridge the power of a court created by the constitution to panish contempts summarily, such power being inherent, and necessary to the exercise of judicial functions; and sections 6906, 6907, Rev. St., will not be so construed as to impute to the general assembly an intention to abridge such power.-HALE V. STATE, Ohio, 45 N. E. Rep. 199. 20. CONTRACT–Public Policy.
- A contract between a board of trade and a person who represents himself as having control over certain industries which he is about to establish in another town, whereby such per. son agrees to withdraw from that deal, and use his in fluence to have those industries established in the town represented by said board, is not against public policy.-LORD V. BOARD OF TRADE OF WICHITA, III., 45 N. E. Rep. 205.
21. CONTRACT-Rescission-False Representations.Representations that a saloon is first-class in every respect, and well fitted up, and that the business will yield a profit of $4,000 in two years, though false, will not entitle the purchaser to rescind the sale for fraud. -O'DONNELL & DUER BAVARIAN BREWING CO. V. FAR. BAR, Ill., 45 N. E. Rep. 283.
22. CONTRACT8-Rescission-Fraudulent Representations.--A party cannot avoid a contract for false representations made by the other party, which his own tes. timonyishows he did not rely upon, nor act upon, in making the contract.-DADY V. GONDIT, III., 45 N. E. Rep. 224.
23. CONVERSION-Ownership of Crops.-The owner of real estate is presumed, prima facie, to own its products, including annual crops. Such presumption, however, is not conclusive and may be rebutted by evidence.ELSTAD V. NORTHWESTERN ELEVATOR CO., N. Dak.,
69 N. W. Rep. 44.
24. CORPORATIONS – Foreign Corporations – Surety Bonds.-A surety bond taken as security for the conduct of an agent of a foreign corporation which under