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Lucas Circuit Court.

repealing provision also fails; so that the effect would be to leave in force Sec. 583, Rev. Stat., as it stood before this amendment was made. The general rule is, that where an act repealing another act and providing a substitute there or is found invalid, the repealing clause must also be held to be invalid, unless it shall appear that the legislature would have passed the repealing clause even if it had not provided a substitute for the act repealed. We had occasion to apply this principle in Whitney v. Gill, 8 Circ. Dec. 450 (15 R. 648), and there we cited authorities in support of the proposition. The same principle was applied by the circuit court of the eighth circuit in State v. Buckley, 9 Circ. Dec. 341, 342 (17 R. 86). In that case the fifth clause of the syllabus reads as follows: "It is not reasonable to conclude that the state legislature meant to repeal all laws regulating elections in this state, and this being true there was no intent to repeal the law of 1890, 87 O. L. 359, by the law of 1896, 92 O. L. 166, for any other purpose than to give effect and operation to the latter law, and the law of 1896 being unconstitutional, the legislature must have intended that if that act should prove unconstitutional, then the law of 1890 should remain in full force and effect; this intent existed, and the purpose of putting in the repealing clause being as above stated, it follows that the repealing clause falls within the law itself, and the act of 1890 remains as the law governing elections."

In the case we have before us, the repeal of Secs. 582, 583 and 584, Rev. Stat., would totally destroy the law upon the subject of attachments before justices of the peace, and it cannot be thought for a moment that it was the purpose of the legislature to repeai these sections except in the course of the amendment thereof by the substitution of the amended sections found in the act of April 19, 1898. Sec. 583, Rev. Stat., as it stood before this amendment, authorized justices of the peace of all the counties of the state to proceed as the justice proceeded in this case. It did not contain this exception of the counties of Franklin and Cuyahoga; so that if this act were held to be unconstitutional, it would result in leaving the section as it then stood in full force, and in leaving the justice of the peace with jurisdiction in this case.

For these reasons we decline to consider the question whether the act of April 19, 1889, is or is not constitutional.

It is also contended by plaintiff in error that a justice may not proceed to judgment in such cases, unless the summons is accompanied by an order of attachment which has been obtained and issued lawfully, regularly and in good faith. It was contended in the case of Kelly v. Flanagan, 11 Circ. Dec. 111 (20 R. 391), that the justice could not proceed to judgment unless property was seized and held under the writ of attachment; and we held in that case as follows:

"Where in a civil action before a justice of the peace, brought in the county but not in the township of the defendant's residence, the summons is accompanied by an order of attachment sued out and issued in good faith upon any ground authorizing an attachment against a resident of the county, and the summons is duly served, such justice thereby obtains jurisdiction over the person of the defendant, and may proceed to personal judgment against him, though no property is seized or held under the attachment."

We based our decision upon what we regarded as the plain unequivocal provisions of the statute upon the subject. In the course of the opinion, on page 114, this language is used:

Collins v. Bingham Brothers.

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What might be done in a case where one procures an attachment to be issued fraudulently, for the purpose of giving a justice jurisdiction where he ought not to exercise it, or in a case where the affidavit should be insufficient, or the like, we do not undertake to say. In this case it does not appear but that the attachment was sued out and issued regularly and in entire good faith; and that part of the object of plaintiff's proceeding failed through his misfortune, but not through his fault; we therefore hold that the justice might rightfully proceed to judgment against the plaintiff in error, as he did."

The plaintiff in error undertakes to distinguish this case from the case of Kelly v. Flanagan, supra. He says that the affidavit in this case was not sufficient, and was not true, and that the attachment was not obtained in good faith. We cannot discover that this is disclosed by the record. From the mere fact that the attachment was voluntarily discharged on the motion of the plaintiff, we are not authorized to assume that it was obtained fraudulently or not in good faith. Various considerations may have moved the plaintiff in the action before the justice to discharge the attachment. He may not have cared to prosecute that part of his suit or remedy. It is said in argument that the ground stated in the record for the attachment, viz: that the claim was for necessaries did not exist. The affidavit discloses that the claim was for coal sold and delivered to the defendant. The affidavit further states distinctly that it was for necessaries, viz: that the coal was necessary. We can see that coal might be as necessary to preserve the life of the defendant, to promote his comfort or health and that of his family, as bread or meat. It is said that this coal, however, was for fuel for a boiler located out in the country somewhere, as a part of the equipment of an oil lease. That fact the record does not disclose; we must take the record as we find it. The simple statement is that the claim was for coal, and that the claim was for necessaries. These averments in the affidavit stand uncontradicted in the record. We find no statement, or affidavit, or finding, to the effect that the coal was not for a use that would make it "necessaries" within the meaning of this provision. The plaintiff in error, when before the justice of the peace, seem to have placed his whole reliance upon the contention that the act under which the justice was proceeding to exercise jurisdiction was unconstitutional. We find no error in this record, and the judgment of the court of common pleas will be affirmed.

INSOLVENCY.

[Lucas (6th) Circuit Court, September Term, 1901.]

Haynes, Hull and Parker, JJ.

WILLIAM H. A. REED, Assignee, v. Ursula Terhune ET AL.

1. ASSIGNMENT FOR BENEFIT OF CREDITORS-DIVIDENDS DEFINED-Sec. 6356 REV. STAT.

In assignments for the benefit of creditors, dividends are made only with respect to funds going to general creditors under Sec. 6356, Rev. Stat. Therefore, an order by the probate court that the assignee pay the proceeds of a sale of property encumbered by mortgage to the mortgagee in satisfac tion of his claim, is not an order for payment of a dividend.

Lucas Circuit Court.

2. FEES OF ASSIgnee for GeneRAL SERVICES NOT TO BE PAID FROM PROCEEDS OF MORTGAGed PropertTY.

The fees and allowances of an assignee for the benefit of creditors, for services rendered to the general estate, and for the benefit of the general creditors, are not to be paid from funds or property subject to specific liens which rest upon the property at the time the assignment is made.

8. SAME.

In an assignment for the benefit of creditors where the assignee has sold property encumbered by mortgage, it would be reasonable and perhaps lawful to allow to the assignee fair compensation for such services as he might perform of benefit to the mortgagee in bringing the property to sale and in bringing the proceeds applicable to the mortgage debt into court, but where it appears that the assignee has been allowed full compensation for that service, he is not entitled to further compensation from this fund for services to be rendered in winding up the estate, and services for the benefit of the general creditors. 4. BURDEN OF PROOF.

In an action by an assignee to set aside an order of the probate court directing the application of a portion of the rents of certain mortgaged property coming into the assignee's hands to the payment of the mortgagee's claim, the proceeds of the sale not being sufficient to extinguish the lien, the burden is on the assignee, having received full compensation for services with respect thereto of direct benefit to the mortgagee, to show that such rents are subject to the claims of general creditors.

5. Order CANNOT BE QUESTIONED EXCEPT BY PARTY PREJUDICED.

Where the probate court has voluntarily entered an order which may deprive the judge of such court of fees that he might collect from the fund in question, another court is not authorized to question that order at the instance of any party not shown to be prejudiced thereby.

HEARD ON ERROR.

W. H. A. Reed, for plaintiff in error.

King & Tracy, for defendant in error.

PARKER, J.

This proceeding is brought here to reverse a judgment of the court of common pleas affirming a judgment or order of the probate court, and to obtain a reversal or setting aside of an order of the probate

court.

It appears that Carey D. Lindsey made an assignment to Mr. Reed of a large amount of real estate-a great many pieces-and that all were more or less incumbered; I believe that the record shows that all the pieces were encumbered for more than their value, unless it should turn out that some of the incumbrances are invalid. Mr. Reed, as assignee, under an order of the probate court, proceeded to collect the rents from these properties keeping an account of the same, and subsequently brought some of the properties to sale; and as to all of the properties covered by the mortgages of Ursula Terhune, the proceeds were so distributed that, after the payment of certain costs and expenses, and one prior mortgage on one piece of property, Ursula Terhune received upon her mortgages the remainder of the proceeds, but these proceeds were not sufficient to discharge her claim. A fund of $1,495.05 arose from the rentals of the property upon which Ursula Terhune had her mortgage, and under the order the probate court as to the collection of these rentals, though it appears that these proceeds were not subject to the mortgage by its terms, the assignee took possession of the property and collected the rents precisely as a receiver appointed by the court at the

Reed v. Terhune.

instance of the mortgagee might have done, and under the arrangement and order, the proceeds coming into the hands of the assignee were subject first, to the claim of the mortgagee under the mortgage. From this $1,495.05 there was allowed to Mr. Reed the sum of $300 for legal services rendered by him in said proceedings; that is to say, in proceedings pertaining to the bringing of this mortgaged property to sale, and pertaining to the collection of the rentals before it was brought to sale; and the order of the probate court upon that subject provides that:

"He shall be entitled to deduct and retain said sum from the net amount of said rentals, but shall not be entitled to claim or deduct any further sum from said rentals, except upon the order of court for services rendered the general estate of said assignor by said assignee not relating to said proceedings or properties should said court determine such deduction proper, which question is reserved for presentation to said court without prejudice to the undersigned parties."

I discover that I have been reading from a stipulation upon the subject signed by the parties or their attorneys, in pursuance of which an order in accordance with this stipulation was entered.

So that it appears that the assignee has received full compensation for all the services that he has rendered with respect to this property of direct benefit of the mortgagee, Ursula Terhune; or in other words, for which he would have a right, as against her as mortgagee, to have any compensation from these proceeds.

Subsequently to this, on the motion of Ursula Terhune, the probate court entered an order authorizing, directing and requiring said William H. A. Reed as assignee of Carey D. Lindsey:

"To pay over to said defendant and cross-petitioner, the balance of the rentals collected from the several properties made the subject of this proceeding, and amounting to the sum of $1,195. And said motion. was heard upon the evidence, argued by counsel, and duly submitted to the court; and it appearing to the court, and the court finding that the statements made and representations contained in said application and motion are true, the court, being fully advised in the premises, on consideration, does hereby authorize, order and direct said William H. A. Reed, as assignee of said Carey D. Lindsey, to pay to said defendant and cross-petitioner, Ursula Terhune, out of the balance of said rentals, the sum of $600, and that said assignee hold the balance of said rentals, towit: the sum of $595.05, to abide the further order of this court; this order being entered without prejudice to the rights of, and with leave to, said defendant and cross-petitioner, Ursula Terhune, to make further application for the allowance and payment of said balance of said rentals to her; to which decision, ruling and orders of the court each of said parties then and there duly excepted."

It is on account of this order that the plaintiff in error now, complains, his contention being that the order was entered prematurely; that the court was not authorized to make this order at the time it was made; this contention being based upon the further contention that this fund of $1,195.05 was subject to some extent to the claims of general creditors, to have a share of the fee of the probate court, including the fees and allowances of the assignee for services that he might render in bringing other property to sale and in winding up the estate paid from this fund; in other words, for services not directly of benefit to the mortgagee as such; services that could not be deemed to be rendered

Lucas Circuit Court.

for the mortgagee as such, but services rather for or pertaining to the general estate and for the general creditors.

It will be observed, therefore, that it devolves upon the plaintiff in error to maintain the affirmative of two propositions: First, that the court may order further fees and allowances of the character and for the services that I have mentioned to be paid from this balance of $1,195.05 ; second, that the order of partial distribution is premature, because the court could not tell in advance how much it might be proper or necessary to order paid from such fund.

Should the first proposition be resolved against the plaintiff in error, it is apparent that the second necessarily falls with it; though the decision of the first point in his favor, would leave the second still to be considered. We have chosen to consider the first point, because it lies at the root and foundation of the whole matter, and ultimately must be met and considered in the court below upon distribution being ordered, and perhaps it may be again presented to this court.

The contention of the defendant in error is, that this fund cannot be further affected by other allowances that may be made to the assignee or other fees that the probate court may be entitled to. There may be more question with respect to the fees of the probate judge than with respect to the allowances to the assignee; but since the probate court has voluntarily entered an order which may have the effect of depriving the judge of that court of fees that otherwise he might collect from this fund, we do not feel that we are authorized or bound to question that order on the account of the probate judge at the instance of any party not shown to be prejudiced thereby. We proceed, therefore, to a consideration of the question as to whether this fund can be depleted or reduced by allowances that may be subsequently made to the assignee for his services. Section 6351, Rev. Stat., provides in part as follows:

"The probate court shall order the payment of all incumbrances and liens upon any of the property sold, or rights and credits collected, out of the proceeds thereof, according to priority."

There is more of this section, but that is the part to which I desire to call especial attention. The requirement and direction of the statute is distinct and absolute, that the incumbrances and liens upon the property shall be paid out of the proceeds, according to their priorities.

We do not regard this order complained of as being in the nature of an order for the payment of a dividend at all. There is no declaration of a dividend here. It is an order to pay the proceeds to the mortgagee on account of the lien of the mortgage. Dividends are to be made only with respect to funds going to general crcditors The provision as to the declaration of dividends is found in Sec. 6356, Rev. Stat. :

"At the expiration of eight months from the appointment and qualfication of the assignee or trustee, and as often thereafter as the court may order, an account shall be filed with said court, by such assignee or trustee, containing a full exhibit of all his doings as such, up to the time of the filing thereof, * * * to which said accounts exceptions may be filed."

Further along in the section:

"Whenever, on settlement, the same shall show a balance remain. ing in the hands of said assignee or trustee, subject to distribution among general creditors, a dividend shall be declared."

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