fault of the debtor, the creditor is entitled to interest from that time by way of compensation for the delay in payment. And if the account be stated, as the evidence went to show was the case here, interest begins to run at once." This rule announced by the Supreme Court of the United States seems to be in entire accord with the latest utterances of the supreme court of the state of Kentucky. In the case of Henderson Cotton Mfg. Co. v. Lowell Machine Shops, 86 Ky. 668, 675, the court said, concerning the allowance of interest upon an account for machinery sold and payable at a definite time by agreement of the parties: "The true ground upon which to put the allowance of interest is the fault of the party who is to pay the debt. If he has made default of payment, then, er æquo et bono, he should reimburse the creditor for keeping him out of the use of his money. He should render an equiv alent for the use of what is not his own. If there be a specified time for payment, and a failure to then pay, or a demand of payment of a liquidated claim, and default, then the debt should, as a matter of law, bear interest from the time of such failure. This is the current of authority, and it is supported by both right and reason." railroad company during its construction, and | a particular time, and is not, owing to the detwo instalments after the completion, of the road. We are of opinion that the ruling of the circuit court upon this point was correct. It was very essential to the contract company that the interest upon the bonds should be provided for during construction, and for such a period thereafter as it was reasonable to presume that the earnings of the road would be insufficient to pay. As the prospective owner of the bonds to be issued, it was directly in terested in the maintenance of the credit of the railroad company. And so much of the contract as obligated the contract company to maintain the credit of the railroad company seems to have been based upon this obvious proposition. This agreement was not, in our judgment, at all dependent upon the operation of the road as completed by the Louisville Southern Railroad Company. It was an absolute contract to pay accruing interest for the time indicated, and formed a considerable ele ment in the determination of the contract price. The interest unpaid was properly deducted from the contract price, and all the assignments of error relating thereto are overruled. 6. The decree allowed none of the subcontractors interest except from the date of the final decree. This has been assigned as error. We have already passed upon this matter, so far as the construction company is interested. The disallowance of interest seems to have been based upon the assumption that there was no contract between the contract company and the subcontractors for the payment of interest, and that the allowance of interest upon such claims, in the absence of a local statute, was within the sound discretion of the court. The court seemed also to attach importance to the fact that the litigation which has resulted in delay was not vexatious, but necessary for the proper marshaling of liens. The question divides itself: First, is interest properly allowable as between the contract company and its subcontractors? Second, is there any reason which should move the conscience of a chancellor to disallow interest because of its indirect effect upon the rights of another class of creditors? În general terms, it may be stated that the contracts between the contract company and its subcontractors provided for payments of a proportionate part of the contract price on monthly estimates as the work progressed, and for payment of all balances due on the completion of the work. There seems never to have been any serious controversy as to these balances due to subcontractors, except in regard to a claim for so-called extra work and materials asserted by the appellant Walker and others. Their claims were not paid because the contract company was unable In Thomas v. Western Car Co., heretofore to pay them, and not because it disputed its cited, there seems to have been no definite time liability. As between the contract com- agreed upon as to payment, and interest was dispany and the subcontractors, there can allowed because, as the court said, the delay in be no serious contention but that interest payment "was occasioned by resisting demands should be paid from and after the completion made by the car company, which the result of of the work and the filing of their lien notices the litigation shows were excessive, if not exas required by statute. That filing is the full tortionate." The contract company was in deequivalent of the rendition of a stated account. fault, and interest is properly allowable from In the case of Young v. Godbe, 82 U. S. 15 the time it failed to pay according to its promWall. 565, 21 L. ed. 251, the court said with ise, by way of compensation for the delay in regard to the allowance of interest upon an payment. Neither is there anything in the open account: “If a debt ought to be paid at | fact that the railroad company is insolvent, nor Neither is there anything in the case of Redfield v. Ystalyfera Iron Co. 110 U. S. 174, 28 L. ed. 109; or Thomas v. Western Car Co. 149 U. S. 116, 37 L. ed. 670, which conflicts with the doctrine as stated in Young v. Godbe and Henderson Cotton Mfg. Co. v. Lowell Machine Shops, cited above. In Redfield v. Ystalyfera Iron Co. Mr. Justice Matthews, in discussing this question, said, for the court: "Interest is given on money demands as damages for delay in payment, being just compensation to the plaintiff for a default on the part of his debtor. Where it is reserved expressly in the contract, or is implied by the nature of the promise, it becomes part of the debt, and is recoverable as of right; but when it is given as damages, it is often matter of discretion. In cases like the present one, of recoveries for excessive duties paid under protest, it was held in Erskine v. Van Arsdale, 82 U. S. 15 Wall. 75, 21 L. ed. 63, that the jury might add interest, the plaintiff ordinarily being entitled to it from the time of the illegal exaction. But where interest is recoverable, not as a part of the contract, but by way of damages, if the plaintiff has been guilty of laches in unreasonably delaying the prosecution of his claim, it may be properly withheld. Bann v. Dalzell, 3 Car. & P. 376; Newell v. Keith, 11 Vt. 214; Adams Exp. Co. v. Milton, 11 Bush, 49." 4.231. 118 8 10 1 be if he fistribution of an insufflerent and imong ieners of the ame ark. The lien claims the ontructor are be the state preferred wer the mortgage and he bondhouders are entitie oni? to that wich emains after enior dens are ti-fles Interest & per the is be ween creditor and debtor the interest's just as much a part of the principai tiaim is the princinat therent Aide controversy imse n The case of Center Brust to a Canton de added 19 this stort March 1, 195, 119. din 37 Pa Reg There is le The contest was between wheontractors and mortgage sreditora The distinctions terveen under the Tennessee abatte onŋatried in that case the lien of the abcontractor was derived from and subcrtinate to the lien of the contractor, and is recovery against the property of the owner wis limited to auch zum as might be found the the princing, contractor at the time the several 9110contractors' liens accrued The question in that cave was as to the extent of the liability of the rumad property to "ne contractor. Jadze Taft, who devered the opinion of the crurt in 637 CARP concerning "Dese serotractors sene said: They were mens superior to the honda They should hear interest or, what is the same thing, ne fund from which they are paya de anonid bear interest until paid. The security and priority of the lien attach as well to interest as to principal. The aggregate of the subcontractors cialms exceeds by at least 36 per cent the sum due Eager, even with in*ereat, any that in the distribution no interest need be calcmated on the claims after Decemher 13 1890, for the share applicable to each will not be varied by adding interest to a elaima for the same period from December 15. 1896, to the date of the decree. But the limit in the aggregate of the liens fixed on the prop erty must be increased by interest until satis faction. This is not a case where the distribution is to be made pro rata between the lienhoiders and the bondholders, in which case, of course, interest is not to be calculated upon the claims after the time of the sequestration of the property for sale and distribution, so long as the claims cannot be paid in full. Chemical Nat Bank v. Armstrong. 16 U. S. App. 465, 8G C. A. 155, 59 Fed. Rep. 372, 28 L. R. A. In the distribution of the proceeds of a mon security between liens of different ves, we know of no principle by which 281. mterest van je stored in the amount of the albertor den intil is -atisfaction. As between Le øndleders and he lennolders, "he lenders ure niited to aterest to the lay of Tell. Ini be terre sold tereicre nDate nterest in he amount terein Cound tue Ziger rm December 15, 1890, inti a snail e her sized vireilant Vuiker and thers deerts & especially aliced. J. N Vuser la contract with he contract comBLY for the erection of our bridges, for which he is to reive the sum of $146, 200, ›I tre 530W1 is the Lure res 3mike, it is price was to Cunas bezection of as bridge 1 arze Jerion tfel into a teen ravine, Iestyny or serteusit lamaging i arre part of the material Vien lad been placi in the rcomdleted «ricture. Yew naterai, of the $522 vas jurasumi jy M-. Vuker. and in the bridge. The *r* teinet to low his claim, being of inion that the lose «nomid fail ipen aim, and act ipen he "ontract * many her upon the milroad "mrany The use of the accident Sinesinei. The employees of the orcze contractor were in the exclusive control of the work. The bruge feil, not from any voient #orm or by an if any extraordinary natThe clear inference is that i fell by reason of leteerire muneering “hat it was insuficienty supported, or subjected by the indze builders a some innecessary strain. Appelant insists that he should be reimbursed for the new nateral. First Because he alileges that the intact company agreed to reim turse aim for the materai destroyed by the falling of his bridge We quire arree with the master and he strict judge who tried this case, that appellant fd not successfully sus tam his contentions to an agreement to reimburse him for the new material necessitated by the falling of the bridze. Second. He insists that the title to the material damaged or destroyed was in the earract company, and that therefore it cognt to sustain the loss. This ecctentica is bottomed upon the fact that the agreement provided for the payment of the contract price in instalments, is the material was delivered on the ground, less 10 per cent of the value thereof. The contract concluded as follows: The balance of the contract price for each structure, including the 10 per cent reserved and payable as each structure is completed and on the monthly estimates, is to become due inspected and approved, according to both spemade upon the material, the title to the same cifications attached hereto. As payments are is to become vested pro rata in the party of the second part. The proof fails to show that the material was in fact paid for as delivered, to any considerable extent. But we are of opinion that, even if the material had been in part paid for, so that the title had vested in proportion to the payments in the contract company, under the circumstances of this case the appellant ought not to be allowed to recover the value of this material destroyed by an accident for which his own employees were manifestly respon sible. The most he could claim, under any | consideration, would be that each of the contracting parties should share the loss in the proportion that they held title to the material destroyed. The burden was certainly put upon appellant to establish the extent of his claim. This he has not done. But upon the ground first indicated, to wit, that the accident was the result of the negligence of the bridge contractor, and was not contributed to or brought about by any fault or neglect of the contract company whatever, the loss ought, therefore, to fall upon the party responsible for the accident. The appeals of G. W. Gourley, W. B. Smith, C. F. & A. R. Burnam, J. W. Caperton, and John Bennett are from decrees disallowing their claims as nonlienable under the statute. The appellants referred to rendered legal services in obtaining railroad rights of way under the contract of the construction company. We have already ruled that money expended in acquiring rights of way is not the subject of a lien under the statute. For the same reason, it must be held that legal or other services rendered to either the contractor or subcontractor in acquiring rights of way are not claims for "labor" done or furnished, within the meaning of that statute giving a "labor" lien. The decrees dismissing their intervening petitions must be affirmed. J. E. Dougherty appeals because a claim for $454.10 for services as a civil engineer in the construction of the railroad was disallowed. The ground upon which it was disallowed was that his services were rendered within the counties of Jessamine and Woodford, and the claim filed in Jessamine county alone. The Kentucky act giving a lien for the labor required that the verified statement claiming a lien should be filed in the county clerk's office of "each county in which the labor was performed." The only evidence concerning the locality in which Dougherty did his work is to the effect that during September, October, and November, 1890, "Dougherty's work was principally in Jessamine county, and his headquarters were in that county," and that "he did a small amount of work during that time in Woodford." The itemized statement of his account filed in Jessamine county was as follows: It is clear that the greater part of his work during three months was done in Jessamine county, where his lien was filed. It will not be unjust if it be assumed that his salary of $300 during those months was two thirds earned by his work in Jessamine, and that a proportionate part of his expenses for the same time attached to his work in Jessamine. The decree as to his claim will be so modified as to allow him $208.60, as the amount of his lien claim, upon which he will receive his pro rata as other lienors, with interest. The claim of Dickason & Crawford was uncontested, except to the extent that it embraced railroad ties cut under a contract with the contract company, but never delivered to the railroad company, or on its premises. The contract company notified them that they would not accept the ties, and that they need not deliver them. The ties had been cut under and in accordance with a contract prior to such notice. There bring no other market for them, they were left to decay in the woods where cut. The claim of appellants is that these ties were gotten out for this work, and were worthless for any other purpose, and that they were entitled to a lien without regard to the fact that they were not actually used in the work of construction. The case is a hard one, but it would be harder still to throw the loss upon the railroad company, which was in no default whatever. If the material had been refused without good cause by the railroad company or its agents or assignees, these appellants would have some standing under such cases as Howes v. Reliance Wire- Works Co. 46 Minn. 44. So if they had been actually delivered on the premises of the railroad company, and not used, appellants would come within the principle of Burns v. Sewell, 48 Minn. 425; Huttig Bros. Mfg. Co. v. Denny Hotel Co. 6 Wash. 122. The fault was wholly that of the contract company. It breached its contract without reason, and refused to accept or pay for the material. It never did go into the structure, and was never so delivered that the railroad acquired the title, or appellants parted with it. Under such circumstances, we do not think that the appellants can be held as persons who who have "furnished material," within the meaning of the lien act. A considerable number of other errors have been assigned by one or other of the appellants. To notice each would extend this opinion to an undue length. They have all been examined and none of them are regarded as pointing out any substantial error. The decrees appealed from will therefore be affirmed, except as herein expressly modified. Costs of appeal will be paid out of the fund arising from sale of the railroad. Motions for rehearing and certiorari overruled. 34 L. R. A. ALABAMA SUPREME COURT. Hinton E. CARR, Appt., v. STATE of Alabama. (106 Ala. 35.) XI. Debts owing to the United States. The principal case of CARR V. STATE might be distinguished from similar cases upon the consttutionality of like statutes to be found in other states, upon the ground that the Alabama Constitution does not except fraud from the constitutional inhibition against imprisonment for debt, yet it is difficult to reconcile the decision with that of Ex parte King (Ala.) infra, VII., wherein the court upheld the constitutionality of an act passed for the protection of landlords against dishonest persons upon the ground that the party was punished, not for owing a debt, but for the wrongdoing, which was by the act made a crime. It would seem that if the act of a party violating the law as to landlords and others is to be deemed within the statutes passed against false pretenses, frauds, cheats, acts to injure and the like, so ought the act of a banker receiving a deposit when insolvent to be held within such statutes; and the courts of the other states have so held. See infra, VII. So, there would seem to be a difference between the act of a banker refusing to honor or cash a check as shown in the case of State v. Paint Rock Coal & C. Co. 92 Tenn. 81, infra, VII., and that of a banker receiving money knowing himself or his bank to be insolvent. The position of debtor and creditor exists in the first instance, while in the latter, although it exists, it is attained by fraud, false pretense, or other wrongful act. lated by act December 12, 1892, making it a misdemeanor for a person engaged in banking to receive a deposit when insolvent, and punishing it with a fine not less than double the amount of the deposit, one half of which shall go to the depositor, and that payment to him before conviction shall be a defense to prosecution. (April, 1895.) debt depends entirely upon the construction to be placed upon the articles in the several state Constitutions prohibiting imprisonment for debt, and the state statutes passed for the purpose of carrying out such constitutional inhibitions. As a general rule it may be stated that the inhibitions contained in the state Constitutions relate only to debts arising out of contracts, express or implied, that is, to actions ex contractu, and have no application to cases of tort wherein the action is ex delicto in its nature, for the reason that the damages recovered therein do not arise from any contract entered into between the parties, but are imposed upon the defendant for the wrong he has done, and are considered as a punishment therefor. In this connection it has been stated that it is a sound rule, to be adopted in construing such constitutional provisions, that such charters of liberty are always to be interpreted, not only in the light of the common law, but also by comparison with previously existing Constitutions. Ex parte Hardy, 68 Ala. 303. So, statutes in restraint of personal liberty are to be construed strictly with a reference to current decisions and the usual practice which existed at the time of and before their adoption. Ramsey v. Foy, 10 Ind. 493. The object of such statutes being to prevent fraud, they should be strictly construed as to the debtor, and liberally as to the creditor. Wendover v. Tucker, 4 Ind. 381. It is the policy of the law relating to arrests for debt to throw around the person of the debtor every proper safeguard, and the provisions relating thereto must be construed favorably to the personal liberty of the individual. Newcomb v. Weber, 1 Cin. Super. Ct. Rep. 12, 16. So, the courts have held that such constitutions, so far as they prohibit imprisonment for debt, were designed to relieve from imprisonment debtors who were unable to fulfil their engagement, provided such debtors acted in good faith toward their creditors. People, Brennan, v. Cotton, 14 Ill. 414. The following cases are the same in effect: Cowles v. Day, 30 Conn. 406, 412; Ex parte Clark, 20 N. J. L. 648, 45 Am. Dec. 394; Moak v. De Forrest, 5 Hill, 605; National Bank v. Temple, 39 How. Pr. 432, 435, 2 Sweeny, 344; People, Latorre, v. O'Brien, 6 Abb. Pr. N. S. 63; Wanzer v. De Baun, 1 E. D. Smith, 261, 264; State v. Manuel, 4 Dev. & B. L. 20, 34; Brown v. Walk, 8 Ired. L. 517, 520. No man can be imprisoned for mere inability to pay his contract debts, nor for failure to pay over to a receiver money which he does not have. Warren v. Rosenberg (Wis.) 69 N. W. 339. The mere inability to pay debts is no longer to be regarded as deserving of punishment, such a remedy for the collection of debts being too harsh. Armstrong v. Ayres, 19 Conn. 540, 555. The harshness which attended the old practice when a capias ad satisfaciendum, or a capias ad respondendum was allowed, led to the constitutional provisions, but yet they should not be con I. General extent and construction of constitutional strued as confined to arrests on such writs alone. provisions. Goshorn v. Purcell, 11 Ohio St. 641, 649; White v. The legality or illegality of imprisonment for Gates, 42 Ohio St. 109. APPEAL by defendant from a judgment of visions of the statute, a deposit in his bank the District Court for Cobert County con- knowing at the time that the bank was insolv. victing him of receiving, contrary to the pro-ent. Reversed. And even under state statutes regulating pro- |covery of any money due upon any judgment or ceedings against debtors, in order to render the decree founded on contract, or due upon any conproceedings taken thereunder constitutional, the tract express or implied, or for the recovery of any provisions of such acts must be substantially com- damages for the nonperformance of any contract, plied with in order to render the imprisonment of it was held that if its language was to be taken acthe debtor constitutional, for the reason that the cording to its ordinary acceptation and meaning, mere fact that the defendant is in debt does not it must be intended to prohibit arrest and imprissubject him to arrest, neither does the fact that he onment on civil process absolutely, in existing as suffers an execution to remain in the hands of the well as in future cases, the terms being clear and officers unsatisfied, when he is of sufficient ability explicit, although under the rule of construction to pay it, even though it may clearly be his duty to that no statute should be construed retrospecdo so, a mere neglect of duty not justifying the tively, unless the intention of the legislature to -creditor in resorting to harsh measures. Maher v. give it such effect clearly appeared, it must be conHuette, 10 Ill. App. 56. Here § 12 of the Illinois Bill cluded that the legislature did not intend to make ⚫ of Rights was construed along with §§ 62 and 63 of the law apply to pre-existing cases. Bronson v. the Illinois Statutes of 1872, relating to judgments | Newberry, 2 Dougl. (Mich.) 38, 43. In that case, and decrees, which prescribed the manner in which however, the subsequent section excluded such a and the circumstances under which an execution construction, its language being too plain and posiagainst the body of the defendant for the causes tive to be misunderstood. named in the exceptions in the state Constitution might be mentioned. So, in view of the constitutional inhibition, it has been uniformly held that in order to justify a resort to arrest, all the provisions of the law relating thereto must be complied with. Huntington v. Metzger, 51 Ill. App. 222, 224. Where the provisions of a state Constitution provided that "no person shall be imprisoned for debt, except in case of fraud," it was held that its provisions were so limited in their scope, so clear and well defined, that their full force was easily understood and applied without difficulty, whether they were considered as restrictions upon inherent, or conditions of granted power, to the full extent of the provision being tangible and definable, reaching to a single ill, full effect being given to it without difficulty. State, St. Joseph & D. C. R. Co., v. Nemaha County Comrs. 7 Kan. 555. Such a constitutional provision practically precludes imprisonment, except as a punishment for acts of a criminal or quasi-criminal character, and leaves the unfortunate but honest debtor free from any possibility of personal restraint. Doyle v. Boyle, 19 Kan. 168, 172. Again, in Atchison Street R. Co. v. Missouri P. R. Co. 31 Kan. 660, 665, such declarations were said to be clear, precise, and definite limitations of the power of the legislature, and of every officer and agency of the people, their meaning and extent being clear, limiting the power of the legislature; no act of that body being sustainable which con flicts with them. So, it has been stated that the provisions of a state Constitution upon this question ought to have a common-sense interpretation; that is, they ought to be understood in the sense in which they were construed by those adopting them, and that even though it was a well-recognized canon of construction that where legal terms were used in a statute they were to receive their technical meaning unless the contrary clearly appears to have been the intention of the legislature, that principle does not apply to the organic law, which is to be construed, according to the acceptation of those who adopted it, as the supreme rule of conduct both for officials and individuals, the evident intention of such Constitution being to relieve those who could not pay their debts, and not to shield from punishment persons who had violated the public law. State v. Mace, 5 Md. 337, 350. Where the state Constitution provided that no person should be arrested or imprisoned on any civil process issued out of any court of law, or on any execution issued out of any court of equity, in any suit or proceeding instituted for the re So, the true spirit of the New Jersey Constitution would seem to be, that the honest debtor who was poor and had nothing to pay with should be exempt from imprisonment at the mercy of his creditor. Er parte Clark, 20 N. J. L. 648, 45 Am. Dec. 394. And the same is the spirit of the North Carolina Constitution, when the insolvency of the debtor is bona fide. State v. Manuel, 4 Dev. & B. L. 20, 34; Brown v. Walk, 8 Ired. L. 517, 520; Burton v. Dickens, 3 Murph. (N. C.) 103; Burgwyn v. Hall, 108 N. C. 489. In Mims v. Lockett, 20 Ga. 474, 476, it is stated that there are only three things for which a ca. sa. debtor may be imprisoned. If, when the court comes to which his case is returnable, he has falied to give notice to his creditor regarding his intention to take advantage of the insolvent debtor's act, or refuses at that time to take the oath, or is convicted of fraud by the jury, the debtor may be committed; and in the first two cases the confinement will terminate whenever he has complied tried case notwithstanding the fraud the debtor with the requirements of the statute, and in the surrender of his effects; and it is erroneous to supcannot be kept in custody after he has made a full finding of a jury, he is deprived of his liberty until pose that when a debtor is incarcerated upon the he discharges the debt. Such law would be in the teeth of the Constitution; and in view of the state Constitution, to say nothing of the strong tendency of the public mind to abolish entirely imprisonment for debt, the insolvent laws are entitled to a liberal construction in favor of the debtor. In Messenger v. Lockwood, 9 West. L. J. O. S. (Ohio) 521, the defendant was arrested upon a ca. sa. in a suit brought for breach of contract, the cause assigned for the writ being that he was a nonresident of the state, but he was discharged on common bail, the court stating that the incarceration of a man's body would not be tolerated simply because he did not reside in the state, no fraud or crime being committed within the meaning of the Constitution. So, in Morrow & Hazzard v. Finch, 7 West. L. J. O. S. (Ohio) 144, it was held that nonresidence, or want of citizenship of a debtor, was not sufficient to authorize the arrest of a citizen of another state; and further, that to arrest a citizen of another state under the Ohio laws was a violation of art. 4, § 2, of the Constitution of the United States, which provides that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states. |