is an entire absence of a trust or a trustee. Upon no accepted theory of construction, therefore, are we authorized, in view of the acknowledged rule of the common law, to enlarge the class, and say that it must, by judicial construction, be held to include other instruments not described,— instruments which, since our earliest adjudications, have been held to be valid, and entitled to enforcement in accordance with their terms.

But it is insisted that the "trustee" contemplated by the statute, and to whom the language of section 6343 is to apply, is not the mortgagee, but the assignee named in the assignment, because the mortgagee does not, and cannot under the circumstances of the case, take possession of the property as against the assignee, the latter having the right of possession and of sale as against the mortgagee, who must work out his rights through the probate court and under the assignee. To this it is sufficient to answer that the assignment is but an incident. It is a factor for .which the creditor is in no way responsible. He has had no agency in procuring it, nor does he hold, nor claim to hold, by right of it. He finds, after his own rights have vested by virtue of his mortgage, that subsequent rights have attached to the same property by an act of the debtor taking effect after his rights are perfect, by force of which the property is in court, to be disposed of according to law, and hence he resorts to that court for the vindication of his claim and the fruits of his security. The possession of the assignee was not taken in the right of the mortgagee, but of the mortgagor, and his holding is adverse to the mortgagee. Moreover, the parties took every possible pains to declare by their acts that the assignee was not intended to be trustee for the mortgagee, and if, in the face of this, possession, or right of possession, subsequently acquired, is to be held as making of the assignee a trustee for the mortgagee, then every mortgage will be a trust where the mortgagor disposes of the property by a sale, or even where he remains in possession of it. The claim may be plausible; it is not sound. In the sense that every receiver, or sheriff, or master commissioner, or other officer of the court who may hold property or money in which a creditor has an interest, or to which he has a claim, is a trustee for such creditor, the assignee for the benefit of creditors may be a trustee for a mortgagee, but in no other.

The conclusion herein before stated is aided by application of another familiar rule of construction. Prior to, and about the time of, the enactment of the first statute on the subject, it was common for failing debtors to make assignments of their effects to a trustee with conditions as to benefits. Some were for the benefit of preferred creditors, with a clause that those who do not, within a certain time specified, release the debtor on account of what may be received from the proceeds of the assignment, shall not be entitled to share in the proceeds. Others were for the benefit of such creditors only as, within a certain time, would agree to take a pro

rata share in full; others for the benefit of certain creditors, and any balance to be returned to the assignor; and still others adding a condition controlling the time within which the trustee should proceed to sell and convert the property,-all which was without the knowledge or consent of the creditors. Thus the debtor was enabled to delay the creditors' remedy for an indefinite period, unless they would consent to discharge the debtor on different terms from those provided in their contracts, and, in effect, permitted the debtor to make a bankrupt law upon his own terms and for his own benefit. See Atkinson v. Jordan, 5 Ohio, 289, and Repplier v. Orrich, 7 Ohio, 246, for illustrations. The act of 1835 affected assignments to trustees when made fraudulently. The act of 1838 (now section 6343) went further, and made all assignments to trustees in contemplation of insolvency, whether fraudulent or not, inure to the equal benefit of all creditors. See Hull v. Jeffrey, 8 Obio, 390. In none of the contemporaneous decisions do we get an intimation, even, that the payment or se curing of an honest debt by a failing debtor was unlawful, or was deemed an evil which called for legislative interference. But the real evil is clearly manifest in these decisions, and the remedy for its correction as clearly embodied in the statute. Knowing, therefore, the mischief which was sought to be remedied, we may the more readily construe the language of the statute used to effect that object.

It is insisted that the precise question presented in this case has not been determined by this court. If by this it is meant that the argument advanced by counsel was not urged in any of the reported cases, the claim may be correct. But, if it is meant that the principle which must control this case has not before been considered, it is, we think, an utter mistake. The principle announced as the controling, underlying one in the above and following cases, is, we are confident, conclusive of the one at bar. In the many decisions upon the general subject, from Atkinson v. Jordan, supra, to its last deliverance upon the question, (save in the overruled case of Mitchell v. Gazzam, 12 Ohio, 315,) this court has not omitted to affirm the right of a debtor, in failing circumstances, in good faith to pay or secure one or more creditors in preference to othWilcox v. Kellogg, 11 Ohio, 394; Fassett v. Traber, 20 Ohio, 540; Doremus v. O'Harra, 1 Ohio St. 45; Atkinson v. Tomlinson, Id. 237; Bloom v. Noggle, 4 Ohio St. 45; Harkrader v. Leiby, Id. 602; Dickson v. Rawson, 5 Ohio St. 218; Bagaley v. Waters, 7 Onio St. 360; Justice v. Uhl, 10 Ohio St. 170. From an examination of these decisions it will appear clear, if decisions can establish anything, that it is established beyond question that, however equitable it may seem to require the assets of an insolvent debtor to be distributed pro rata among his creditors, our statute fails to make compulsory provision for that end; but, on the contrary, it permits preferences, if made in good faith, though but little be left, or

ers.

thorities to the proposition that a failure to comply with the requirements of the statute is fatal to the attempted lien. These cases are instructive as showing the strictness with which the court has held parties to a compliance with the statute, and that defective instruments or affidavits will not be cured. Other cases are to the effect that mere form is not controlling, and where the affidavit made substantially complies with the statute it will be held good. We are dealing with a case not of form of affidavit, but of absence, from an instrument deposited to perfect a lien, of any affidavit whatever.

Now, what does the statute require? Westlake v. Westlake, 47 Ohio St. 315, 24 N. E. Rep. 412, is authority, if authority be needed, to the point that a filing in the city or town where the property was situated is not sufficient, but that there must also be a deposit with the proper officer at the place where the resident mortgagor resided. Where both are required, no reason is apparent for making any distinction between the two acts, nor for regarding one as higher or more im-, portant than the other, nor is any valid reason given why less formality should attend the filing of the mortgage or true copy in one place than in the other. If it is important that creditors, or others interested, in the one locality, have notice of the status of the mortgagor's property by sworn statements, and have access to a document which, if false, might be the predicate of a criminal prosecution, why should not persons having a like interest, living in the other locality, have a like notice? Or if a copy of the mortgage, and a copy only of the affidavit, is sufficient in the one place, why would it not be in the other? It is impossible to see how the present case would be different if the mortgage, with affidavit, had been filed at Springfield, and the copy, with copy of affidavit, had been filed in Cincinnati; or how it would be different in principle if the resident mortgagor's home had been in the remotest section of the state instead of in Hamilton county. It is insisted that creditors and purchasers are presumed to know the law, and therefore those finding copy only of the affidavit on copy of mortgage on file should presume that the law had been complied with, and that a genuine affidavit had been attached to the paper filed at the other place. But what reason is there for requiring the acceptance of a presumption by creditors or purchasers at either place? Of course the anxious country creditor, if he wanted information from original sources, could travel to Cincinnati to see what the files there might disclose, but this would consume time, and time might be of the first importance. And if the task could be imposed upon one living in Springfield township, a like task would have devolved upon one living in the township of the state furthest distant from Cincinnati, had that section happened to be the home of either mortgagor. Other inconveniences incident to the situation will readily occur. The argument ab inconvenienti manifestly has application. It has been urged that it was sufficient

to file the mortage, with affidavit, at Cincinnati, because the property was there, and therefore that was the place where persons interested would be most likely to consult the files. To this it would seem sufficient to suggest that the actual situs of the property is of consequence, or can have effect, only where there is a nonresident mortgagor, the actual place or places of residence, governing where the mortgagors are all residents of the state; and, further, that personal property is transitory; it may be here to-day and away to-morrow, the mortgagor having the right, without consent of the mortgagee, to remove it to any point within the county, while the residence of the mortgagor, though capable of transition, is less frequently the subject of removal. But, however these considerations may affect the question, it would seem enough to say that the statute, for reasons abundantly good to the lawmakers, has prescribed (1) what shall be filed; and ‍(2) the place or places where filed. The thing to be filed is the mortgage, or a true copy, verified as required, by the oath of the mortgagee; the places, in this case, where to be filed, the town of the residence of the resident mortgagor, and the place where the mortgaged property was situate. The statute, by its terms, requires a mortgage duly executed, and in like plain terms authorizes as valid a copy of it. The statute also, by its terms, requires an affidavit, but it nowhere, by direct language or by fair implication, recognizes the validity of a copy of an affidavit. A true copy of the mortgage may take the place and serve the purpose of the original, but the affidavit is no part of the mortgage. That instrument is complete without an affidavit, and good between the parties. It is only to affect third parties that further formalities are necessary. By the enactment of the registry law, the legislature has attempted to lay down plain rules, easy to be understood and followed, and, so far as practicable, to allow all questions of priority to be settled by order of registration; and it is incumbent on the courts to further this just and sound public policy by administering the law as they find it, and not, by yielding to the inclination to relieve hard cases, fritter away these wise provisions ordained by the lawmakers. As to creditors, the mortgage is but the creature of the statute, and to carry out the intent of the legislature we think that all material provisions of the statute must be complied with. To like effect are decisions of courts of other states where similar statutes are in force. Cases in point are: Hill v. Gilman, 39 N. H. 88; Porter v. Dement, 35 Jll. 478; and Reiff v. Eshleman, 52 Md. 582.

Giving effect to the language, and what seems to us to be the plain intent, of the statute, we are constrained to the conclusion that the filing of a copy of a chattel mortgage, with copy of affidavit only, does not satisfy the requirements of the statute, and can have no legal effect whatever, but that an instrument, fully meeting the description given in the statute in every respect, is necessary to be de

posited wherever the mortgage, or a copy of it, is directed to be placed.

It is insisted, further, by the plaintiff in error that the preferences should be set aside as obtained by fraud, because the assignee, after the deed of assignment was delivered to him, at the request of the mortgagees, purposely withheld the filing of the deed until he had first filed the mortgages, with intent to give the mortgagees an advantage over the other creditors. Not finding it necessary to pass upon this question in disposing of the case, we express no opinion upon it. In holding that the mortgages were legally filed, we are of opinion the common pleas erred. For this error its judgment, as well as that of the circuit court affirming the same, will be reversed.

PEOPLE ex rel. BRADLEY et al. v. SHAW et al.

(Court of Appeals of New York. June 17, 1892.) ELECTIONS AND VOTERS-BALLOTS-NOMINATION

OF CANDIDATES-MARKED BALLOTS.

1. Laws 1890, c. 262, (Ballot Reform Law,) S$ 1, 2, 3, provide for the printing of an official ballot at the public expense. Section 25 provides that a "voter may write or paste upon his ballot the name of any person for whom he desires to vote. " Held, that it is no objection to counting a vote that the person voted for was not regularly placed in nomination, and that his name did not appear on any official ballot.

2. The fact that the pasted ballot used in voting for town officers contains the name of a candidate for excise commissioner which is not on the official ballot does not vitiate the ballot as to such officers by making it a marked ballot. 19 N. Y. Supp. 302, affirmed.

Appeal from supreme court, general term, third department.

Application by Henry Bradley and others for mandamus to Thomas G. Shaw and others, composing the board of canvassers of the town of Minerva. From an order of the general term affirming an order of the special term granting the writ, (19 N. Y. Supp. 302,) defendants appeal. Affirmed.

J. W. Houghton, for appellants. Foley & Wing, for respondents.

GRAY, J. These appellants composed the board of town canvassers for the town of Minerva, and, in proceedings instituted upon the application of these relators, a peremptory writ of mandamus issued, requiring them to reassemble, and to declare the result of a town meeting, allowing to the several relators the number of votes cast for them as stated in the moving affidavits, and called "paster ballots," and directing the board to issue a certificate of election to the candidates having the greatest number of ballots cast for them, including such "paster ballots."

The first objection-that the relators, having failed to receive a proper nomina. tion by a political party which at the last election before the holding of the convention or primary meeting polled at least 1 per centum of the entire vote cast In that political division of the state for which the nomination is made-is wholly unsound, and without force. The plan

contained in sections 1, 2 and 3 of the ballot reform act1 was a provision for the printing of an official ballot at the public expense; a feature well designed to secure the desired secrecy and independence of the ballot. But that it was in no wise intended to prevent the voter to vote for any candidate whom he chose is evident from the further provisions of the law (section 25) that "the voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office." Indeed, to hold otherwise would be to disfranchise, or to disqualify, the citizen, as a voter or a candidate, and, in my opinion, to affect the law quite unnecessarily with the taint of unconstitutionality in such respects.

The interesting and more important question in the case relates to the effect which the presence upon the paster ballot of the name of the office of excise commissioner, and of the name of the candidate therefor, had upon the ballots cast for the relators. Being upon the ballot officially indorsed and to be cast for town officers other than excise commissioners, who, under the ballot law, are to be voted for upon a separate ballot, and in a separate box, of course they could not be counted as votes for the candidate for excise commissioner; but it was argued that the effect upon the ballot was to mark or identify it, and to subject it to the condemnation of the law. The relators, who were nominated for the several town offices at an independent meeting or cau. cus, were obliged to have paster ballots printed at their own expense, for use at the polls. All of these paster ballots had printed upon them the name of the candidate for the office of excise commissioner; and, if that was a fact which made the ballot a marked one, within the meaning of the ballot law, then every one of the ballots printed for this independent ticket and for the use of its supporters was vitiated. The effect of this appearance upon the paster ballots, however, was not for consideration in this proceeding, otherwise than as to whether it constituted any reason for rejecting them in counting the votes and declaring the result.

The case, upon the affidavits presented, quite warranted the issuance of the writ in question. Aside from the grounds stated in the opposing affidavits for defeating the relators' application, which concerned the legality of the mode by which the relators were put in nomination, all that was urged against the “paster hallots" cast for them was that they were defective, "in that they contained the name of an office, and a candidate therefor, that was not upon the official ballots, and could not be properly on the same ticket with the other town officers," etc. That was, in substance, a claim that these paster ballots were illegal, and could not be counted. There was no conflict as to the number or description of these paster ballots, and each bore the proper official in. dorsement entitling it to be deposited. The protest which was filed by the appellants, and which appears in the case, was 1 Laws 1890, c. 262.