
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    HUGHES ET AL. v. DALE, ASSIGNEE OF E. E. EVANS & CO., ET AL.
    
      Priority of liens as between an attaching creditor prior to an as - signment and the claims of operatives employed by the assignors—
    Error to the Court of Common Pleas of Hamilton county.
    The City Hall Bank obtained a magistrate’s judgment against E. E. Evans & Co. for $288.40 and costs, and made a levy thereunder upon machinery in the defendant’s factory previous to the making of the assignment. Thereafter an agreement was entered into between the bank and Ben B. Dale, assignee, that the property thus levied upon should be sold by the assignee, and the fund so derived should be held by the asignee for the bank to the ■ extent of its judgment with costs, the lien of the bank being thu's recognized to be the first and best against said property. At^the hearing below Judge Sayler held that the lien of the bank as obtained was first and best, and was prior to the claims of the operatives who, subsequent to the assignment, filed with the county recorder itemized statements of the amount, kind and value of the work performed by them in the said factory within a period of three months preceding the assignment, with all credits and off-sets, and the amounts severally due therefor.
    
      Oliver B. Jones and Scott Bonham, for the Operatives.
    
      Schwab & Schultz, for the Bank.
   Swing, J.;

Cox, J., concurs; Smith, J., dissents.

A majority of the court are of the opinion that the judgment of the court of common pleas in this case should be affirmed, on the ground that the property levied upon by the bank did not pass to the assignee and become part of the assets of this trust by virtue of the assignment, but passed by virtue of an agreement between the bank and the assignee, and therefore did not become assets in his hands as such assignee, to be distributed according to law.  