later, however, in Hoitt vs. Burlugh, 18 N. Hamp. 389, it was decided that, in law or equity, where a plaintiff or defendant desires an issue, it is his duty, in order to preserve his constitutional right of trial by jury, to make his application before the taking of testimony.

And so in Massachusetts proceedings in equity are controlled and regulated both by constitutional and statutory provision to such an extent that little is left relating to trial of the character of chancery proceedings as practised in England: Charles River Bridge vs. Warren Bridge, 7 Pick. 366. In Ward vs. Hill, 4 Gray, 595, Chief-Justice Shaw, referring to proceedings exclusively in chancery, not, however, in the courts of Massachusetts, says: "We suppose it well established, as a rule of chancery, that, after a hearing, an issue to try a matter of fact will be ordered, or not, according to the sound judicial discretion of the court."

In Tennessee, North Carolina, Texas, California, and, indeed, in almost all the States, excepting Pennsylvania, and, perhaps, New Jersey, constitutional and statutory provisions, so far as relates to the trial in proceedings commenced by bill, have practically overturned all rules modelled strictly in accordance with the practice in the High Court of Chancery in England. In New York, before the innovation, the English practice was firmly adhered to. In Le Guen vs. Gouverneur et al., 1 Johns. 501, it was held that, if the evidence in a case be doubtful, the chancellor may send the question to another jurisdiction for trial; but, on the other hand, if the evidence be satisfactory, or decisive in favor of either party, the rights of such party ought not again to be hazarded before another tribunal, and the chancellor ought to decide; possessing the power, it is his duty to do so, for the power and duty of a court are concurrent and inseparable. And in Dale vs. Roosevelt, 6 Johns. Ch. 257, Chancellor Kent remarked "that it was the practice and the undoubted jurisdiction of the court to decide on the facts as well as the law, and the awarding of an issue rests in sound discretion ; it would be an abuse of that discretion, and the creation of a great and unnecessary expense, to award an issue when the truth of the alleged facts might be sufficiently and satisfactorily ascertained by the court itself."

But, to conclude, we have seen what the practice in Pennsylvania is in relation to the matter in hand; it only remains for me to repeat that the request of the plaintiffs must, at this time, be refused.

Hon. Charles L. Lamberton for the plaintiffs.
Andrew T. McClintock, Esq., for the defendants.

Court of Common Pleas of Mercer County.

[Leg. Int., Vol. 34, p. 150.]

GRIFFITH vs. THOMAS.

The act of March 23, 1877, does not affect a sheriff's sale upon a judgment entered on a note waiving stay of execution.

Opinion delivered April 10, 1877, by

MCDERMOTT, P. J.-The petition in this case is in effect an applica

tion for a mandamus on A. P. Pew, sheriff, to proceed and sell real estate on the above fi. fa. The material facts are:

1. The defendant, on the 29th of September, 1874, gave the plaintiff a note due in one year in the sum of $484. In this note he waived the stay of execution, inquisition, condemnation, etc. Judgment was confessed on it the day it was given.

2. On the 19th day of February, 1877, the above fi. fa. was issued, and was returnable on the second Monday of April following.

3. By virtue of it the sheriff levied on fifty-four acres of land, more or less, and duly advertised the same for sale on the second Monday of April, on which latter day he refused selling the same on the ground that he could not do so since the passage of the act of March 23, 1877. 4. On the same day this mandamus was prayed, an injunction was prayed for in another case, the counsel concerned in which, Hon. E. W. Jackson, made an argument applying to both cases, and the only one made in either of them in favor of said act being in all its parts constitutional.

The counsel for both plaintiffs contended that the act in question was unconstitutional as to judgments based on contracts waiving the stay of execution. It was pressed with great zeal and ability that the courts below should sustain the act and let the court of last resort pass on its constitutionality.

To this argument our views are so clearly enunciated by the Hon. Ellis Lewis, subsequently chief-justice of the State, that he, not we, shall express them. He says: "In considering the constitutionality of this act, we are met at the threshold of the case with the suggestion that courts of original jurisdiction ought not to investigate constitutional questions, but should, without scruple, execute every act of the legislature, however unjust and unconstitutional, and thus leave the injured party to seek his remedy, as best he may, by an application to the Supreme Court. There are so many proceedings in our courts, which the legislature has not thought proper to place under the control of the Supreme Court, that the result of this course of judicial action would be in many cases a violation of acknowledged constitutional right without any remedy whatever, and in all cases a vexatious delay of that justice which courts are enjoined to administer without denial or delay." ... "The truth is that the rule is directly the reverse of that suggested. The courts of original jurisdiction should regularly dispose of all questions which arise before them; and the court of review, in its appellate jurisdiction, should not interpose until the decision has been pronounced by the court below. The conceit which inverts this order of proceeding belongs to a sickly brood of judicial fancies, which are destined to be shortlived. Their weakness would insure contempt but for the influence of those who give them countenance. Their folly would be amusing but for their mischievous tendency, and their constitutional infirmity would excite their commiseration but for the criminal abandonment of official duty to which they tend. But it is not necessary at this enlightened period in the history of constitutional liberty to adduce arguments to prove what all regu lated minds concede, that all the judicial tribunals are bound to administer justice according to law; that the constitution is not only a part

of the law, but the paramount law; that an act of assembly which contravenes its provisions is no law, and that a judge whose oath of office binds him to support the constitution cannot knowingly violate its provisions, even at the bidding of legislative power, without degrading the judicial character and staining his conscience with the hues of official perjury:" Martin vs. Bear, P. L. Journal, 5 Clark, 17.

"The principle deducible from all the decisions on the questions involved is, that while the legislature is prohibited from impairing the obligations of a contract, it may yet alter or abridge the remedy for a breach of the contract, provided the alteration be not so great and unreasonable as to amount to a substantial impairing of the contract obligations:" 3 Grant, 243.

In the absence of evidence to the contrary the legal presumption is, that in a contract waiving the stay of execution such waiver was at least a part consideration for the credit obtained. If the legislature gives a stay on such contract, no legal acumen can convince me that its obligation has not been greatly and unreasonably impaired.

The rule is for the lower courts to sustain legislation, and it is only where they are satisfied that it is " clearly, plainly, and palpably" unconstitutional that they should so declare it. When so satisfied they must so decide. If, under this act, the sheriff cannot be compelled to sell on this fi. fa., it is worse than vain to say that it does not give him a stay of execution which he contracted not to claim.

66

The act, so far as it gives a stay of execution on contracts waiving it, is "clearly, plainly, and palpably" a violation of the 10th section of the first article of the constitution of the United States, and of the 17th section of the first article of the constitution of this State. Under these sections of said articles, the legislature is prohibited from passing au'er post facto law impairing the obligations of a contract. We regard the case of Billmeyer vs. Evans, 4 Wright, 324; and Lewis vs. Lewis, 11 Wright, 127, as directly in point. In the first of these, the court, inter alia, says, so when these defendants stipulated for twelve months' credit, and agreed that there should be no stay of execution beyond that limit, can the legislature say there shall be a stay beyond that limit without impairing the obligation of the contract? How would it be possible more directly to impair a contract? What is it but setting aside the contract made by the parties, and substituting a different one for it? To say that a contract which waives a stay of execution is not impaired by a law which gives a stay, is to talk language which is unintelligible. If the legislature may do this, the constitutional provisions are a vain parade of words, a mere theoretical rule without any force or value."

As there is neither exception nor proviso in the act exempting any class of contracts from its operation, the sheriff was justified in refusing to sell without a peremptory mandate from the court, for surely if the lower courts do only in very clear cases declare a law unconstitutional it is more than a sheriff should do in any case.

And now, April 10, 1877, after a full and exhaustive argument, the sheriff is directed, enjoined, and commanded to sell, the premises levied upon under said fi. fa., the same as though the act of March 23, 1877, had never been passed.

:

To which command, etc., A. P. Pew, sheriff, did except, and at his request bill of exceptions sealed.

Court of Common Pleas of Montgomery County.

[Leg. Int., Vol. 34, p. 169.]

In the matter of J. B. SoLMS' Estate.

The act of April 9, 1872, giving certain employés priority of claim for wages, does not apply to a farm laborer.

Sur report of auditor and exceptions thereto. Opinion delivered September 25, 1876, by

Ross, P. J.-This record presents for adjudication a question that is novel in this court, and one which we must decide, unaided by the light of authority, and guided only by the construction of the act of the general assembly (P. L. 47), approved April 9, 1872, giving certain employés priority of claim for wages.

Mr. Solms was engaged in business as a farmer, in Lower Merion township, in this county, in 1873 and 1874, and during that period judgments were entered against him, writs of fieri facias were issued against him upon these judgments, and his personal property was sold. Its proceeds were claimed by the execution creditors in the order of their priority; and also by certain persons who were in his employ at the time he became insolvent. One is Ann Kelly, who was in his service as a men al servant, and the other two, Patrick Kelley and Edward Harrold, were employed upon the farm at regular wages. There was due at the time of Mr. Solins' insolvency and the levy under the writs to the exceptants in gross, the sum of $270.50, and notice of this indebtedness was duly given at the sale made by the sheriff. The question presented by the record is simply, whether these claims are to be paid out of the sum raised by the sale, in preference to the indebtedness of the execution creditors.

It is insisted that they are thus preferred by virtue of the act already cited. That provides as follows: "All moneys that may be due, or hereafter may become due, for labor and services rendered by any miner, mechanic, laborer, or clerk, from any person or persons, or chartered company employing clerks, miners, mechanics, or laborers, either as owners, lessees, contractors, or under owners of any works, mines, manufactory, or other business, where clerks, miners, or mechanics are employed, whether at so much per diem or otherwise, for any period not exceeding six months immediately preceding the sale and transfer of such works, mines, manufactories, or business, or other property connected therewith in carrying on said business, by execution or otherwise, preceding the death or insolvency of such employer or employers, shall be a lien upon said mine, manufactory, business, or other property in and about or used in carrying on the said business, or in connection therewith, to the extent of the interest of said owners or contractor, as the case may be, in said property, and shall be preferred and first paid out of the proceeds of the sale of such mine, manufactory, business, or other property as aforesaid. And, etc., etc."

I think it is too clear to admit either of doubt or question, that the

legislature only intended to protect laborers, and such other employés who were employed by individual owners, companies, or lessees, who were engaged in business of a character that required the employment and services of miners, mechanics, laborers, and clerks; and does not apply to general laborers.

In fact it was to protect the employés of individual owners, and lessees, who are engaged in developing the great manufacturing, mining, and mineral resources of the commonwealth. These men, paid at reg ular intervals by pay-roll, are, of necessity, at the mercy of trade and financial mutations, precisely as are their employers; when times are hard, in order to obtain work, they are compelled to labor, take the risk of obtaining their wages when pay-day comes; and it is evident that the reason and spirit of this legislation was to protect this class of laborers only.

But the act distinctly declares this in terms, for, after specially providing for laborers, under owners of any works, mines and manufactories, it adds the broad phrase, " or other business," but immediately limits its extensive significance by adding, "where clerks, miners or mechanics are employed." This clearly limits the character of the other business contemplated by the act, to the classes of industry to which its general spirit applies.

It is absurd to apply it to a menial servant, for such are now protected by law. If it can be applied to laborers on a farm, it may be applied to the body servant of a gentleman of leisure. Laborers on a farm are not laborers at "other business," in the contemplation of the statute, but are in fact menial servants.

It never was the intention of the legislature to give farm hands and other employés in the various forms of domestic life, the protection of this statute, and thus obtain liens both upon the real and personal estate of their employers, which are to be preferred in the distribution of assets to lien creditors of record. It has, by other statutes made for their protection, given them preference; and by the act of 1872 it extends to a different class of laborer and employé, a preference which is special to that class.

We are of opinion that the auditor erred in allowing the claim for wages out of this fund; and we therefore remit the report to him, to distribute the fund in court among the execution creditors in the order of their priority.

And now, September 25, 1876, report remitted to the auditor to be amended as directed by this opinion.

Mr. Davis, for exceptions.

T. W. Bean, Esq., for report.

Court of Common Pleas of Schuylkill County.

[Leg. Int., Vol. 34, p. 250.]

SCHWARTZ vs. BANKS.

Under the act of 9th April, 1872, wages of labor earned after a levy made on personal property, are not entitled in the distribution to have priority over the claim of the execution creditor. The levy gives him a vested right of which he cannot be de prived by delay in making the sale, to which he was not a party.