chaser becomes hopelessly insolvent, and plaintiff may be entitled to recover his in addition to his insolvency he strips claim less the small cost necessary to put himself of the power to continue his busi- the roof in the condition demanded by ness, it would be manifest wrong to per- the contract. This cost is not given or mit him to convert the goods purchased estimated, nor is it shown wherein the for the purpose of his business to the payment of preferred debts.

roof is faulty. Perhaps it is due to faulty plans or designs for which the contractor In charging the jury we endeavored to is not liable. The allegation is so vague follow the ruling of our Supreme Court in and indefinite that it can not prevail as a the case of Bughman v. Bank, 159 Pa. defence. It is also stated that liens are 154. If that case correctly states the filed by sub-contractors for which the law, and the reasoning of the learned owner should have credit in the present judge seems to be unanswerable, and the action. This is a matter that can be adpresumption is that it does, then the jury justed after the judgment is entered. have found that the place of delivery was Execution can be stayed to protect the at Chester, and as the acts constituting owner. Under the written contract it legal fraud were committed before or would be the duty of the court to restrain about the time of the actual delivery, the an execution until these liens were paid verdict is right. and satisfied: Moore v. Carter, 146 Pa. 492; Huckestein v. Kelly, 152 Pa. 631.

As to the case before the same jury, involving the sale of sand, the evidence The remaining defence relates to the was very clear that the delivery was to provision in the contract requiring cerbe at the Eureka Company's yard at tificates from the supervising architect Chester. In that case, therefore, the before payments are to be made. The verdict is undoubtedly correct, if the law owner lost his copy of the contract, but was properly stated to the jury.

An allegation in the affidavit of defence that the contract price for erecting a house is not due because construction of the building is defective in that the roof leaks," is too vague and indefinite to prevent judgment. Where the agreement provides for the satisfaction of liens filed by sub-contractors before any money is payable to the contractor, execution on the judgment of the contractor's lien will be restrained until such other liens are paid and satisfied.

If the defendant is unable to say whether he owes the money claimed in the plaintiff's statement, it is useless to send the case to a jury for

trial.

Rule for judgment for want of a sufficient affidavit of defence.

the claimant attached to his lien a contract; and there is no allegation that this is not a correct copy of the agreement between the parties.

According to the affidavit no certificates were produced from the architect that the Work was done in accordance with the plans and specificaiions. To this statement is added the following declaration :

No such certificates were ever produced, and the defendant is unable to ascertain whether or not the building has been finished in compliance with the said plans and specifications."

The architect was the agent of the defendant. The building was to be completed by July 1, 1894. The lien was filed January 9, 1895, and suit was brought May 27, 1895. We think the owner ought to know by this time whether he has a building such as he can demand under his contract. If he can not "ascertain" from his own agent whether the

H. M. Brownback, Esq., for plaintiff. F. G. Hobson, Esq., for defendants. October 7, 1895. SWARTZ, P. J.-The claimant has complied with the contract, plaintiff erected a church building under it is not surprising that the plaintiff is a written contract. According to the without his certificates. If we refuse claim filed and statement presented there is a balance due him.

The affidavit sets up several defences. It alleges that "the construction of the building is faulty in that the roof leaks." "The fault may be very slight, and a few dollars may correct the difficulty. The

judgment and send the case to a jury there may be nothing to try, for the owner may find upon further investigation that he received all he is entitled to under his agreement.

The statement of plaintiff refers to the record of the mechanic's lien, and under

our rules of court this makes the lien a clerical work, in the business of mining part of the plaintiff's statement. The or manufacturing, or any other employees. lien declares that the debt was contracted for the construction of the building, "as per contract annexed." This is an allegation that the debt is due under the contract. If the architect fraudulently, or even arbitrarily, withholds the certificates, the plaintiff may recover without them. As the owner can not obtain an opinion from the architect as to the character of the work, we think it is but a fair inference that the plaintiff is armed with a legal excuse for not producing the certificates.

If the defendant does not know whether he owes the money, it is useless to delay the cause.

And now, October 7, 1895, the rule for judgment is made absolute. Upon due proof that liens in favor of sub-contrac tors remain unsatisfied of record, execution upon the judgment now entered will be restrained until such liens are paid and satisfied.

QUARTER SESSIONS.

Q. S. of

Commonwealth v. Isenberg et al. Statutes Constitutional law Semimonthly pay law.

shall make payment in lawful money of the United States to the said employees, laborers and wage workers, or to their authorized representatives; the first payment to be made between the first and the fifteenth, and the second payment between the fifteenth and thirtieth of each month, the full net amount of wages or earnings due said employees, laborers and wage workers upon the first and fifteenth instant of each and every month wherein such payments are made. And in every case any individual, firm, corporation or association or other employer, shall refuse to make payment when demanded, upon the dates herein set forth, to wage workers, laborers or other employees employed by or with the authority of such individual, firm or corporation or association or other employer, the said individual, the members of the firm, the directors, officers and superintendents or managers of said corporation and associations shall be guilty of a misdemeanor, and upon conviction shall be sentenced to pay a fine not to exceed two hundred dollars."

The defendants claim the act is unconstitutional on three grounds: 1. Because Clearfield Co. in conflict with article 1, section 17 of the constitution, which reads: "No ex post facto law, nor any law impairing the obligation of contracts, or making irrecoverable any grant of special privileges or immunities shall be passed." 2 reads: "All men are born free and independent, and have certain inherent and inde feasible rights, among which are those of enjoying and defending life and liberty, of

A statute that requires employers to pay wages twice in each month, between fixed days, interferes with the natural rights of both employers and employees to make contracts.

The act of May 20, 1891, violates article I, acquiring, possessing and protecting propSec. I and Sec 17 of the constitution.

Case stated.

August 3, 1895. GORDON, P. J.-The defendants are charged in the indictment with violating the Act of Assembly, approved May 20, 1891, P. L. 96, known as the semi-monthly pay law. The facts

erty and reputation, and of pursuing their own happiness." 3. Because in conflict with article 3, section 7 of the constitution, which reads: "The general assembly shall not pass any local or special law regulating trade,

*

*

*

*

mining or manufacturing.

are set out in the case stated. Defend The first and second grounds involve ants admit the charges made, and, by somewhat the same principles, and we way of defence, raise the issue that the wtll consider them together. The quesAct in question is unconstitutional. It tion arises, does the act run counter to reads: "Sec. 1. That from and after a the constitutional provisions quoted? Does period of two months subsequent to the it impair the obligation of contracts? Does date of the passage of this Act, every in- it infringe upon the inherent and indedividual, firm, association or corporation feasible rights of the citizen in enjoying employing wage workers, skilled or ordi- liberty, acquiring property and pursuing nary, laborers engaged at manual or happiness? Does it seek to prevent him

from doing just as he pleases with that ployee. While actuated by the best of which is his own, even though he respects motives and with a sincere desire to adthe rights of others, and is in all respects, a law-abiding citizen?

vance the interests of the wage worker, the legislature, by this act, interferes with The case stated shows defendants were his liberty and practically assumes he is engaged in the business of mining and incapable of making contracts and taking shipping coal at a fixed price per ton, and care of himself. Liberty includes the employed the persons named in the indict- right to make contracts and acquire propment to mine said coal. The contract, erty. Labor is property, and the laborer which was verbal, was silent as to the has the right to sell his labor, and to conduration of the employment and times of tract with reference thereto, as is any the payment of wages. In such case the other property owner. The act assumes law construes it a contract for such time to furnish a guardianship over him. This as may be mutually agreeable, with wages is unnecessary and unjust. It is right payable upon demand, or at termination and proper for the law to shield and proof the contractural relations, and the tect all of the people of the State in their rights of the parties are to be judged of constitutional rights, and should be zealas if the contract of employment had ous to do so in proportion to their inabili specifically included such stipulations. ty to protect themselves. In recognition But notwithstanding such contract exist- of this principle, various wholesome laws ed between the persons, which is presum- have been passed for the security and proed to be to their mutual advantage and tection of the rights of the people in all best interests, the act of assembly says the walks of life, and commendable zeal defendants shall make payment of wages has been exhibited in guarding and proto their employees semi-monthly, between certain dates named in each month, and upon their refusal to do so on demand, regardless of the cause thereof, they shall be deemed guilty of a misdemeanor.

moting the interests of the wage earner. Laws have been passed facilitating the collection of the wages of labor, giving, wherever possible, a lien for the same and a preference over other classes of creditors. Authorizing him, in the promo tion of his interests, to act either in his individual or in a collective capacity. Such laws are wise and beneficent.* And, however the act of 1891, in question, may have been intended or looked upon as to its wisdom and efficiency, such a law, in our opining, under the rules of legal construction and the decisions of our courts, cannot be sustained. It contravenes the clauses of the constitution quoted and is void.

This is alike unjust to employer and employee. As to both it says, practically, no matter how it may, in your opinion, be to your interest and advantage in seeking the employment of your constitutional rights, to contract with respect to your own affairs in a particular manner, you cannot do so. At least, as to the times and kind of payment for wages you must contract and pay as specifically set out in the act, and if the employer fails thus to pay, regardless of his contract with the employee, or of the misfortunes which The constitutionality of this act has may overtake him, making it impossible not, as yet, been passed upon by the Sufor him to do so, he shall be liable crimi- preme Court, but several of the Courts of nally. It is an attempt to intrude and Common Pleas have declared it void. substitute the judgment of the legislature The remarks of Mr. Justice Gordon, in for the judgment of the employer and em- the case of Godcharles & Co. v. Wigeployee in a matter about which they are man, 113 Pa. 431, are very pertinent in competent to agree with each other, this case. The case involved the constiwhich alike reflects upon the intelligence tutionality of the act of June 29, 1881, and interferes with the liberty of both. known as the "Store Order Act," and It is specially unjust to the employer, the same principles are applicable. not only because it provides how he shall says delivering the opinion of the court, contract in the matter of the time of pay- "the first, second, third and fourth secment of wages, regardless of his wishes tions of the act of June 29, 1881, are utor material interests, but makes him crim- terly unconstitutional and void, inasmuch inally responsible for failing to comply as by them an attempt has been made by with it. It is equally unjust to the em- the legislature to do what, in this country,

He

Abstracts of Recent Decisions.

Cases not otherwise designated are Su

cannot be done; that is, prevent persons
who are sui juris from making their own
contracts. The act is an infringement
alike of the right of the employer and the preme Court cases.)
employee; more than this, it is an insult-
ing attempt to put the laborer under a legis-
lative tutelage, which is not only degrad-
ing to his manhood, but subversive to
his rights as a citizen of the United States.
"He may sell his labor for what he
thinks best, for money or goods, just as
his employer may sell his iron or coal,
and any and every law that proposes to
prevent him from so doing is an infringe
ment of his constitutional privileges, and
consequently vicious and void."

Similar acts have been passed upon by the courts of other states, and while the decisions are considerably lacking in uni formity, in our opinion, the drift and tenor of the decisions sustains the view we have taken of it, The Supreme Court

of Ohio, in the case of The State of Ohio v. The Lake Erie Iron Co., declared their their semi-monthly payment law, which is very similar to our act of 1891, unconstitutional, because in conflict with a clause in their constitution, which is almost a literal copy of section 1, of article I, of our constitution quoted. And the Supreme Court of the state of Illinois has recently declared their eight hour law unconstitutional, because confined to women, and is a restriction on the right to contract guaranteed by their constitution.

Borough franchises Street railway tracks.-Where a borough conferred upon a street railway company, by ordinance, the right to lay tracks and operate its road upon the centre of Wyoming Avenue, the grant will be construed to authorize the putting down of a switch or a side track in addition to that of the main line, where the public convenience is promoted thereby. The provision in the ordinance that the tracks of the railway shall be laid upon the centre of the street, is not to have a severely strict construction, but means that the middle of the street, rather than the sides, thereof, is to be occupied.-Borough of Wyoming v. Railway Company et al., (Luzerne C. P.) 8 Kulp 113.

County Auditors' report-Mistake in surcharge against Poor Directors.-The annual board of County Auditors must confine their investigation of the accounts of officers to the previous year, and a surcharge in report for 1895 relating to 1893 will be stricken off by the court. If the surcharge against the Poor Directors. for the year ending 1893" in the County Auditors' report for 1895, refers to a contract made in 1893 for meat furnished in 1894, the court will not on motion to. strike off the surcharge permit the audiThe third ground upon which it is tors to correct the error. While purclaimed the act is unconstitutional is, that chases for the County Alms House should it is void as in violation of article 3, sec- be made from the lowest responsible bidtion 7 of the constitution. That it is not der, the board of poor directors have applicable to all employers and employees nevertheless discretionary power in the of the state, but confined and restricted performance of their official duties which to those engaged "in the business of in the absence of fraud can not be intermining and manufacturing," and there- fered with by the Court.-In re Report of fore special legislation. County Auditors, (Lancaster C. P.) 12 Lancaster Law Review 409.

In view, however, of the conclusions arrived at as to the first and second constitutional objections to the act, it is unnecessary that we pass upon the third.

The act being unconstitutional and void, the conclusion follows that defendants cannot be convicted of the offence charged in the indictment, of failing to comply with its provisions. Therefore, in accordance with terms of the case stated, it is ordered and decreed that a verdict of "not guilty" be entered in favor of defendants.

Decedent's estate-Creditor-CitationPractice.-A, executor of the estate of B, deceased, having failed to file an account within two years. a petition was filed by D, who claimed to be a creditor of B's estate, praying for a citation to compel an accounting by A, whereupon A filed an answer in general terms denying that the petitioner was a creditor or in any wise interested in the estate, to which the petitioner demurred; HELD, that if the answer challenges the position of the peti

Measure of damages-Riparian rights. In an action by a land owner against an incorporated water company to recover damages for the diversion of water from a running stream, the value of the water power destroyed is not the only element of damages; anything that gives a special value to the water may be considered.

Without its charter the defend

tioner, the proper practice is for the peti- Zimmerman, (Lancaster C. P.) 12 Lantioner to file a replication and make prima caster Law Review 410. facie proof of the matters contained in the petition.-Williams' Estate, (Lackawanna O. C.) I Lackawanna Legal News 340 Foreign corporation-Appeal-Bail for costs-Aets of 1817, 1845, 1847, 1849 and 1850 construed.-A foreign corporation being an artificial person within the meaning of the 12th section of the Act of 25th April, 1850, as such is entitled to appeal from the award of arbitrators by giving ant corporation could not legally store bail for costs only. The Act of 1850 is, the water of the stream in the daytime in form, a construing statute, relating for the purpose of pumping it up at night only to appeals from arbitrators, but is in and diverting forever the water so pumped the nature of an independent, imperative from the stream; and if the proper exerenactment. It appears to have no other cise of its franchise requires that this design than to remove the then existing should be done, and if such necessary condition requiring, from corporations storing of the water is injurious to the defendant, bail for the debt on appeal plaintiff, the jury may consider this as an from arbitrators. The principles of conThe principles of con- element of damages -Lewis v. struction that repeals by implication are Springfield Water Co., (Delaware C. not favored in law and are not allowed P.) 6 Delaware County Reports 274. except in cases of strong repugnancy, or Opening judgment-What is necessary irreconcilable inconsistency, and that a to sustain application.-On an application general statute, without negative words, will not repeal a previous statute which is particular, though the provisions of the two be different, are not applicable to this case.-McConnell v. New York, Lake Erie & Western R. R. Co., (Wayne C.P.) I Lackawanna Legal News 343.

The

to open a judgement where the petitioner's own witness disproves of the material facts in the petition the application will be denied.-Peoples National Bank v. Rit tenhouse, (Montgomery C. P.) 11 Montgomery County Law Reporter 203. Principal and agent-Power of attorney Husband and wife-Execution-Injunc- to bind client.-Every one who transacts tion. An injunction will be granted to business with an agent is bound to make restrain the sale of a wife's real estate on inquiry and inform himself as to the execution by a creditor of her husband, nature and extent of his authority. Ignorwhere the evidence of her title is clear ance or misinformation by the agent himand uncontradicted. The sheriff should self cannot be pleaded. An attorney-atnot be joined as a defendant in the equity law who acted for the plaintiff in investproceedings. Shober v. Harrison Bros. ing a sum of money, has no implied & Co (Lancaster C. P.) 13 Lancaster authority to collect the principal of the Law Review 9.

judgment given for said investment, although he had given his individual Injunction-Riparian rights.-An in- check for this investment to the defendjunction will lie to prevent the pollution ant, who never saw the plaintiff, and had of a stream of water by an upper riparian made other investments for the plaintiff owner to the injury of the lower owner. and collected the principal and interest on -Rudolph v. Dobson & Schofield, (Mont- them, as well as the interest on said gomery C. P.) 11 Montgomery County judgment, without objection by the plainLaw Reporter 197. tiff. This only ratified his action in those

Justices of the Peace-Jurisdiction-Set particular instances. He could not, withoff.-Jurisdiction cannot be conferred out express authority to collect the princiupon a Justice of the Peace by reduciug pal of said judgment, enter his name on the demand below $300, by setting off the record and enter satisfaction so as to another independent debt between the bind the plaintiff, who never received the parties. The reduction must be by di- principal money or ratified such action. rect payments or mutual dealings that -Himes v. Herr (Lancaster C. P.) 13 amount to actual payment.-Wanner v. Lancaster Law Review 13.