
    Hughes et al., v. The City Hall Bank et al.
    
      Lien on chattels — Delivery, by levying officer, of property to assignee for creditors — Funds from sale of property subject to the lien, when — Section 3206a Rev. Stat.
    
    An officer holding chattels under an execution may, without releasing them from his levy, deliver them to an assignee for the benefit of the creditors of the execution debtor, the delivery being upon an agreement between the officer and the assignee that the funds arising from the sale of the chattels by the latter shall be subject in his hands to such lien. Such arrangement is not defeated by section 3206a, Revised Statutes.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Hamilton County.
    The controversy concerns a portion of the proceeds of the sale of property in the hands of the assignee of E. E. Evans & Company, for the benefit of their creditors. On appeal from the probate court the common pleas court made a special finding of the facts, the material facts found being that on October 2,1893 the City Hall Bank recovered a judgment against the assignors before a justice of the peace, and upon the same day caused an execution to be levied on their chattels. On October 5, 1893, the execution debtors made an assignment for the benefit of their creditors, and thereafter the constable delivered the property, which he had taken upon execution to the assignee upon an agreement made between them that the lien of the bank thereon should not be waived but should attach to the proceeds of the sale when the property should be sold by the assignee. Claims amounting to |2370.16 were established by operatives employed by Evans & Co. for services rendered within three months prior to the assignment. The agreement between the constable and the assignee was made without the knowledge of any of the operatives. The proceeds arising from the sale of the property not being sufficient to pay the judgment of the bank and the claims of the operatives in full, it was ordered- by the common pleas court that the bank be paid in full, and that the balance of the proceeds be distributed among the operatives in proportion to the amounts of their claims. This order Avas excepted to by counsel for the operatives. On petition in error it was affirmed by the circuit court.
    
      Oliver B. Jones and Scott Bonham, for plaintiffs in error.
    
      Foraker, Outcalt, Granger & Prior, and Schwab & Schults, for defendants in error.
   By The Court:

Counsel for the plaintiffs in error insist that priority is due to the claims of the operatives because of the following provision of Section 3206a, Revised Statutes : “In all cases Avhere property of an employer is placed in the hands of an assignee, receiver or trustee, claims due for labor performed within the period of three months prior to the time such assignee, receiver or trustee is appointed, shall be first paid out of the trust fund in preference to all other claims against such employer, except claims for taxes and the.cost of administering the trust.”

Notwithstanding the comprehensive terms of this provision, it must be construed with reference to the agreement upon which, for the purposes of better and more economical administration, the property was delivered by the officer to the assignee. This property did not pass into the hands of the assignee by virtue of the assignment. In the hands of the officer it was not subject to any demand by the operatives except as to such part of the proceeds as might remain after satisfying the execution. Their consent to the transfer and the condition thereof was therefore not necessary.

Judgment affirmed.

Minshall, J., dissents.  