
    ASSIGNMENTS.
    [Hamilton Circuit Court,
    January Term, 1898.]
    Cox, Smith and Swing, JJ.
    Hughes et al. v. Dale, Assignee.
    Superiority oe Ríen of Execution Revied Prior to an Attachment to Craims of Operatives.
    Where property is taken under an execution prior to an assignment, and, by agreement between the assignee and the execution creditor, is held and sold by the assignee for the benefit of the creditor, such property does not pass to the assignee and become assets in his hands, and the lien of the execution is superior to claims of operatives, for work and labor, filed with the assignee.
    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 assignee for the bank to the extent of its judgment with costs, the lien of the bank being thus 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.  