at a later date, but still prior to the filing of the petition in bankruptcy, Camp exercised his rights under this valid and equitable arrangement to possess himself of the property and make sale of it in pursuance of his contract, he was not guilty of securing a preference under the bankruptcy law."

case.

The Supreme Court of the United States approved the case last cited in the case of Thompson v. Fairbanks, supra, and, in that case, said: "The principle that the taking possession may sometimes be held to relate back to the time when the right to do so was created is recognized in the above So in this case, although there was no actual existing lien upon this after-acquired property until the taking of possession, yet there was a positive agreement, as contained in the mortgage and existing of record, under which the inchoate lien might be asserted and enforced, and when enforced by the taking of possession that possession under the facts in this case related back to the time of the execution of the mortgage of April, 1891, as it was only by virtue of that mortgage that possession could be taken. The Supreme Court of Vermont has held that such a mortgage gives an existing lien by contract, which may be enforced by the actual taking of possession, and such lien can only be avoided by an execution or attachment creditor whose lien actually attaches before the taking of possession by the mortgagee. Although this afteracquired property was subject to the lien of an attaching or an execution creditor if perfected before the mortgagee took possession under his mortgage, yet, if there was no such creditor, the enforcement of the lien by taking possession would be legal, even if within the four months provided in the act. There is a distinction between the bald creation of a lien within the four months and the enforcement of one provided for in a mortgage executed years before the passage of the act, by virtue of which mortgage and because of the condition broken title to the property becomes vested in the mortgagee, and the subsequent taking possession becomes valid, except as above stated."

In the case of Sexton v. Kessler & Co. (C. C. A.) 172 Fed. 535, 544, 21 Am. Bankr. Rep. 807, 820, the opinion of the court, rendered by Judge Noyes, says of the last-mentioned case and that of Humphrey v. Tatman, supra:

"While the Supreme Court in the cases referred to treats the validity of the mortgages and the rights of the mortgagees thereunder to be matters of local law, in my opinion it also states this underlying and controlling distinction: The exercise of a pre-existing right well founded in equity is not a preference, although occurring within the prescribed period; 'the bald creation of a lien within four months' is a preference."

In view of the principle asserted by these cases, it seems to me that the exercise of the right to take possession of the pledged property, within the four months, did not constitute an illegal preference, because it was done pursuant to a valid agreement to pledge for which a present consideration had moved to the bankrupt, and therefore related back to such agreement, except as against intervening claimants who had perfected liens on the pledged property in the interim, of whom there were none. The trustee represented no class of creditors who could successfully attack the transaction.

The petition for review is granted, and an order will be made by the court granting the prayer of the original petition and directing the two automobiles to be turned over to the petitioners in the original petition filed with the referee; and the trustee is taxed with the costs of this proceeding.

SPAETH v. SELLS et al.

(Circuit Court, S. D. Ohio, E. D. September 30, 1909.)

1. ABATEMENT AND REVIVAL (§ 71*)-DEATH OF PARTY-REVIVAL OF ACTIONSTATUTORY PROVISIONS.

The remedy given by Rev. St. Ohio, § 5150 et seq., for the revivor of an action on the death of a party, is, if there be a strict compliance with its. provisions within the time limited by statute, a matter of right and not of discretion.

[Ed. Note. For other cases, see Abatement and Revival, Cent. Dig. § 358; Dec. Dig. § 71.*]

2. COURTS (§ 343*)-DEATH OF PARTY-REVIVAL OF ACTION-STATUTORY PRO

VISIONS.

Under Rev. St. U. S. § 955 (U. S. Comp. St. 1901, p. 697), providing that, when either of the parties in any suit in any court of the United States dies before final judgment, his executor or administrator may, if the cause of action survive, prosecute or defend to final judgment, does not determine the plaintiff's right of revivor on death of defendant; that being governed by the law of the state where the suit is brought and prosecuted.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 915-920; Dec. Dig. 343.*]

3. WORDS AND PHRASES-"ORDER TO SHOW CAUSE."

An order to show cause is an order requiring a party to appear and show cause why a certain thing should not be done or permitted.

[Ed. Note. For other definitions, see Words and Phrases, vol. 6, p. 5024.] 4 ABATEMENT AND REVIVAL (§ 74*)-DEATH OF PARTY-PROCEEDINGS FOR REVIVAL LIMITATIONS.

Under Rev. St. Ohio, § 5144, specifying the cases in which a cause of action survives the death of a party, section 5150, providing that a revivor may be effected by a conditional order, if the action be revived in the name of a representative of the party who died, and section 5157, providing that an order to revive an action against a representative of a defendant shall not be made without his consent unless within one year from the time it could have been first made, the conditional order being equivalent to a substitute for a notice of motion to show cause, the procuring of such an order is not a sufficient compliance with section 5157, and the right of revivor is barred unless the final order of revivor is made within the time prescribed. [Ed. Note. For other cases, see Abatement and Revival, Cent. Dig. §§ 429, 434; Dec. Dig. § 74.*]

Action by W. T. Spaeth against Lewis Sells and another. on demurrer to the answer. Overruled.

Arnold, Morton & Irvine and Jones & James, for plaintiff.
Vorys, Sater, Seymour & Pease, for defendant Karb.
W. O. Henderson and W. H. Jones, for executrix.

Heard

SATER, District Judge. The petition was filed on May 10, 1907, against Lewis Sells and George J. Karb, sheriff. The plaintiff claims that it states three causes of action, viz., for assault, false imprisonment, and malicious prosecution. The defendant executrix asserts that the action is for malicious prosecution only, and that all else alleged is merely incidental thereto. Sells died September 5, and his executrix qualified November 5. On December 3 the plaintiff took a conditional order of revivor, which recites that, unless the executrix "shall within ten days after the service of this order show cause against the revivor of the same, said cause shall stand revived." She

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexe

was served December 5, and on December 14, 1907, filed an answer assigning reasons why the action should not be revived. The case remained dormant as to both parties until April 17, 1909, a period of more than 16 months. On that day an amended and supplemental answer was filed by the executrix, reciting the date of the death of Sells, and of her appointment, and that the action could have been revived at any time subsequent to that date, but that no such order had in fact been made, and that more than one year had elapsed from the time the action could have been first revived, and that she does not consent to a revivor. To this answer the plaintiff interposed a general demurrer.

Plaintiff insists that he is entitled, under sections 5149 and 5150, Rev. St. Ohio, to an order of revivor. Section 5149 is as follows:

"A revivor may be effected by the allowance by the court, or a judge thereof in vacation, of a motion of the representative or successor in interest to become a party to the action, or by supplemental pleading alleging the death of the party, and naming his representative or successor in interest upon whom service may be made as in the commencement of an action; but the limitations contained in subsequent sections of this chapter do not apply to this section."

We are not concerned with that section, the remedy given by it being discretionary with the court and not a matter of right (1 Bates, Pl. & Pr. 633), nor with such cases as Carter v. Jennings, 24 Ohio St. 182, Black v. Hill, 29 Ohio St. 86, Pavey v. Pavey, 30 Ohio St. 600, Foresman v. Haag, 37 Ohio St. 143, and Eagle Paper Co. v. Bragg, 4 Ohio Dec. 194, 7 Ohio N. P. 165, because they were decided under section 5149, Rev. St., while this proceeding was instituted under section 5150. It is manifest, from an examination of the above cases, that the provisions of section 5157, Rev. St., hereinafter set forth, do not apply to either mode of revivor authorized by section 5149, and this is the view expressed by Whittaker in his Annotated Code (6th Ed.) 406, and 3 Bates' Complete Dig. 1315. The remedy given by sections 5150 et seq. is, if there be strict compliance with statutory provisions, a matter of right and not of discretion. 1 Bates, Pl. & Pr. 635. The plaintiff elected to proceed under section 5150, Rev. St., and took the conditional order therein provided for.

Section 955, Rev. St. U. S. (U. S. Comp. St. 1901, p. 697), provides "When either of the parties, whether plaintiff or petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survive by law, prosecute or defend any such action to final judgment."

That section, however, does not aid in the determination of the question presented, for the reason that revivor is governed by the law of the state where the suit is brought and prosecuted. Great Western Min. & Mfg. Co. v. Harris (C. C.) 111 Fed. 38, 44; Green v. Barrett (C. C.) 123 Fed. 349.

The law which controls in this case is found in sections 5144, 5150, and 5157, Rev. St., which sections are as follows:

"Sec. 5144. Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or

against a justice of the peace for misconduct in office, which shall abate by the death of either party."

"Sec. 5150. A revivor may also be effected by a conditional order of the court, if made in term, or by a judge thereof, if in vacation, that the action be revived in the name of the representative or successor of the party who died, or whose powers ceased, and proceed in favor of or against him."

"Sec. 5157. An order to revive an action against the representative or successor of a defendant shall not be made without the consent of such representative or successor, unless within one year from the time it could have been first made."

The action for malicious prosecution, by the express language of section 5144, Rev. St., abated on the death of Sells.

Assuming, without deciding, that there was an action pending either for assault or for false imprisonment, or, for that matter, for both, and without deciding what effect shall be given to Baltimore & Ohio Ry. v. Joy, 173 U. S. 226, 19 Sup. Ct. 387, 43 L. Ed. 677 (which case counsel appear to have overlooked), is the plaintiff entitled to an order of revivor against the executrix by virtue of the proceedings inaugurated on December 3, 1907?

The plaintiff claims that he made a well-defined attempt within the period prescribed by law to procure a revivor by taking and serving on the executrix a conditional order authorized by section 5150, Rev. St., and thereby so preserved his rights that he may now have an order of revivor, notwithstanding he remained inactive thereafter for at period of more than 16 months. To sustain his contention he relies on Steinbach v. Murphy, 70 Kan. 487, 78 Pac. 823, in which it is said: "The fact that a district court, eight months after the time an order reviving an action against the representatives or successor of a deceased defendant first could have been made, erroneously decided that it had no jurisdiction of the cause, will not excuse a failure to revive within one year, when no attempt was made to procure an order of revivor before the jurisdiction question was determined."

Keyser v. Fendall, 5 Mackey (D. C.) 47, and Dick v. Kendall, 6 Or. 166, are also cited.

What is the nature of a conditional order, and the correct interpretation of the Ohio statute?

In 18 Enc. Pl. & Pr. 1137, it is said:

"A conditional order of revivor is in its nature an order to show cause, and, as is usually the case with such orders, is used as a method of shortening the notice of motion, and is equivalent to, and a substitute for, a notice of motion."

In 15 Enc. Pl. & Pr. 362, it is announced that:

"An order to show cause is an order requiring a party to appear and show cause why a certain thing should not be done or permitted."

The conditional order, therefore, was equivalent to, and a substitute for, a notice of motion to show cause why a certain thing, which had not been done, should not be permitted. The thing that had not been done was the making of the final order of revivor. Section 5150, Rev. St., contemplates a hearing to be had within a specified time, and, if sufficient cause be not shown against a revivor, the conditional order is then made final, and the action stands revived. 18 Enc. Pl. & Pr. 1139. Section 5157, Rev. St., fixes the time of hearing within one

year from the time in which it could first have been made. A right to revivor is a matter of right only under the conditions and within the time limited by statute. 18 Enc. Pl. & Pr. 1141.

From Tefft v. Bank, 36 Kan. 457, 13 Pac. 783, it appears that the Kansas Code on the subject of revivor is the same as that of Ohio, and that section 433 of that Code is the same as section 5157, Rev. St. Ohio. The mode of reviving dormant judgments in that state (section 440) is the same as that prescribed for reviving actions before judgment. Three days prior to the end of the year after which a judgment would become dormant, a motion of revivor was filed, and notice was given on the same day by one of the judgment creditors that an application to revive the judgment would be presented to the court, 27 days after the year had elapsed. The district court, against the objection of the notified debtor, ordered a revivor. This was held error. In the opinion it is said:

"The filing of the motion and the giving of the notice is not sufficient to bring the case within the limitation. The point of limitation prescribed by the statute is the making of the order, and not the commencement of the proceedings to obtain the order. One year is given within which the judgment may be revived. * The party should at least commence proceedings

*

in sufficient time to give the required notice to the adverse party of the hearing within the year, and the time fixed in the notice when the application is to be made should be within that period. It is unnecessary to consider what would be the result if the case had been noticed for hearing within the time, and by action of the court or through no fault of the applicant it was continued and extended beyond the year."

In Berkley v. Tootle, 62 Kan. 701, 703, 64 Pac. 620, it was held that: "In the matter of revivor there is no right to an order; nor is there power within the court or judge to make one, unless it is made within one year after it could have been first made."

In Reaves v. Long, 63 Kan. 700, 66 Pac. 1030, it was held:

"A judgment can only be revived without the consent of the judgment debtor when the order of revivor is made within a year after the judgment becomes dormant, and when it has become dormant for more than a year there is no power in the judge or court to revive it, although a proceeding to revive was begun before the year of dormancy had expired."

After reciting that the mode of procedure for the revivor of a judgment is substantially the same as that for the revivor of pending actions, the opinion continues as follows:

"As revivor is surely statutory in its origin, it can only be accomplished in the mode and on the condition prescribed by statute. As will be seen, the statute explicitly provides that an order of revivor shall not be made without consent unless within one year from the time it could have been first made. This is not a limitation upon the commencement of proceedings, nor upon the time within which to make application for an order, but it is a limitation upon the granting of the order itself."

Steinbach v. Murphy, 70 Kan. 487, 489, 78 Pac. 823, considered as an entirety, not only fails to sustain, but refutes, the plaintiff's contention. In speaking of the statute of revivor, it is said in the opinion of that case that:

"It imposes an absolute prohibition upon the granting of an order after the lapse of a year from the time when it first could have been made. The right, by the terms of its creation, can endure but a year. The time element is an