The 3d section of the Act of 1872 does not give a lien on choses in action in favor of wages claimants: the lien is limited to such property as is subject to seizure and sale on execution.

Moneys received from the insurance of a woolen mill must be distributed pro rata among all creditors; the wages of operatives in the mill are not entitled to a preference in such distribution.

The proceeds of a crop of wheat, growing at the time the

labor of operatives was performed, and severed, by sale

or otherwise, before the real estate is sold, is properly

applicable to the payment of their wages, in preference to the lien of a judgment on the land. That the severance was produced by the sale of a receiver will not affect the rule.

It seems that the proceeds of a grass crop, grown after claims for wages had accrued, should, however, be awarded to lien creditors in their order.

It seems, also, that the proceeds of old iron, which had formed a part of the machinery of a mill destroyed by fire, should be distributed as real estate.

atives in the mill claimed a preference out of all these funds, under the Act of 1872. The wages of these claimants accrued chiefly in December, 1880, and January, 1881.

The court below, FUTHEY, P. J., applied the proceeds of the grass and old iron to lien creditors, but allowed a preference out of the proceeds of the corn, wheat and insurance moneys, to the wages claimants.

This appeal was then taken by John Jones, a lien creditor.

Opinion by STERRETT, J. Filed March 19, 1883.

The subject of complaint in the first and second specifications is that the amount realized by the receiver from the sale of corn and the growing wheat crop, was erroneously awarded to the appellees on their respective claims for wages, under the Act of 9th April, 1872, to the exclusion of appellant's claim.

The corn was grown on the land bound by appellant's judgment; but having been garnered in the fall before the receiver was appointed, it came into his possession as personal property of the insolvent firm, in whose service the wages claimants were employed. The wheat, having been sown the same fall, was a growing crop at the time the wages were earned, and in that condition it was afterwards sold by the receiver as personal property. The learned judge was

Robert Preston was in 1878 the owner of woolen mills and other real estate, which was incumbered with liens. In that year he entered into copartnership with one Firth, and the business of manufacturing woolen goods was carried on by them under the firm name of "Robert Preston." The stock and machinery in the mill, and the real estate became, by virtue of the articles, partnership property. The firm failed, and on February 12, 1881, ceased operations. On the same day Preston made an individual assignment for the benefit of creditors. On June 22, 1881, a receiver of the firm was appointed by the court. On June 1, 1881, the mills were destroyed by fire, having been i̇nsured the previous January in the name of Robert Preston.

The assets for distribution were, (1) the proceeds of the sale of corn, grass and wheat; (2)¦ the proceeds of the sale of old iron which had formed part of the machinery of the mill destroyed by fire; and (3) moneys received from the insurance on the mill. The corn was harvested in the fall of 1880; the wheat was sown the same fall; and the grass was grown in the spring of 1881. Both wheat and grass were sold by the receiver as personal property. The oper

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the product of agriculture, pass to the administrator or assignee for the benefit of creditors, as the case may be, and are liable to be seized and sold on execution as personal chattels of the debtor: Pattison's Appeal, 11 P. F. Smith, 294; Hershey v. Metzgar, 9 Norris, 217. All that is required is that there should be, as there was in this case, a severance, by sale or otherwise, of the growing grain, before the land itself is sold. It is quite clear that the appellant, a judgment creditor, had no lien on the growing wheat crop or the products thereof. If he was interested in the proceeds of either it was only as a general creditor of the insolvent firm. As to the proceeds of the old iron, which had formed part of the machinery of the mill destroyed by the fire, and the grass crop, which, in an agricultural sense, was wholly grown after the claims for wages had accrued and while the land was in the hands of the receiver, the court, upon principles recognized in Altemose v. Hufsmith, 9 Wright, 128; Reiff v. Reiff, 14 P. F. Smith, 134; Bausman's and Herr's Appeal, 9 Norris, 178, and other cases, very properly drew a distinction in favor of the appellant as a judgment lien creditor; but no question as to these items arises in this case.

As we have seen, when the wages were earned and the employers became insolvent, the corn and the growing wheat crop were personal property of the firm-chattels, not in any manner bound by the lien of pre-existing judgments, but liable to seizure and sale on execution. This being so, we are of opinion that, according to the true interpretation of the Act of 1872, the employees in the mill had a lien upon both, which adhered to the proceeds thereof in the hands of the receiver, and hence the court was right in awarding that part of the fund to them. The first section of the act provides that all moneys due for labor and services rendered by those belonging to either of the classes mentioned therein, “shall be a lien upon said mines, manufactory, business or other property in and about, or used in carrying on said business, or in connection therewith, to the extent of the interest of said owners or contractors, as the case may be, in said property, and shall be preferred and first paid out of the proceeds of the sale of such mines, manufactory, business or other property as aforesaid; provided that the claim of such miner, mechanics, laborer and clerk, thus preferred, shall not exceed $200." It is also provided in the 4th section of the act, "that no lien of mortgage or judgment entered before such labor is performed, shall be affected or impaired thereby." The 3d section of the act declares that "in all cases of the death, insolvency or assignment of any person or persons, or chartered company, engaged in operations as hereinbefore mentioned, or of executions issued against them, the lien of preference mentioned in the first section of this act, with the like limitations and powers, shall extend to every property of of said persons or chartered company."

This clearly gave the appellees a lien on the personal chattels of the firm, including the corn and growing wheat crop in question, and also upon the real estate, subject to the right of prior mortgage and judgment creditors. The first and second assignments are not sustained.

The question raised by the third and fourth assignments is whether the appellees had a lien also on the insurance policy or proceeds thereof. When the mill, machinery, etc., were destroyed, the policy became a chose in action, and the money afterwards realized therefrom came into the hands of the receiver as part of the assets of the firm. As has already been observed, the act gives the employees therein named a lien, not only on the real estate, but also on the personal goods and chattels of their employers; but we think it would be a strained construction to hold that it was intended to give them a lien on choses in action. There is nothing in the

phraseology of the act or its supplements to indicate a legislative intention to extend the lien beyond such personal property as is subject to seizure and sale on execution. The Act of 8th May, 1874, P. L., 120, postpones coal lease mortgages to the lien of wages mentioned in the Act of 1872. By the Act of April 20, 1876, P. L., 43, the wages claimants may, after the expiration of thirty days from any voluntary assignment for the benefit of creditors made by their employers, enforce the collection of their claims, just as if no such assignment had been made; and if the assignee has sold the property, he may be compelled to file his account thereof forthwith. The last Act (June 12, 1878, P. L., 207) gives the employees a preference over landlords in all claims for rent of mines, manufactories or other real estate held under lease, where the lessee is the party employing the miners, mechanics, laborers or other clerks, provided that these workmen shall give notice of the nature and amount of their claims to the landlord or his bailiff before actual sale of the property levied on.

The language employed in the several acts appears to contemplate a lien upon the employer's real estate and such personal property as is ordinarily the subject of seizure and sale on execution or distress for rent, and not upon choses in action. We think, therefore, that the learned judge erred in awarding the proceeds of the insurance policy to the labor claimants, to the exclusion of other creditors. That part of the fund is not subject to lien in favor of any class of creditors, and hence it should be distributed pro rata among all.

Decree reversed at costs of appellees and it is ordered that the record be remitted with instructions to distribute the fund in accordance with this opinion.

There were

times when the price of gold varied almost daily. Nothing was then more common than for parties paying and receiving gold to agree upon the rate, always, of course, approximating | the market value; when done in good faith, I never heard the taint of usury applied to such a transaction.

The record discloses some confession in regard to the judgment. The jury found a verdict for

Contra, Messrs. Speer & McMurtrie. Opinion by PAXSON, J. Filed October 2, 1882. The interest upon the note in controversy was payable "in gold or its equivalent." In point of fact, it was not paid in gold but in legal tender notes, at a rate the parties deemed the equivalent of gold.

finding that, allowing him interest in gold, the amount would be $1,595.37. These amounts the court subsequently corrected with the consent of the defendant, making them respectively $1,185.59 and $2,995.37. The court evidently intended to enter a judgment for the smaller sum; but, by some mistake, a judgment appears to have been entered for each amount. We can best correct this by reversing the judgment below and entering the proper judgment here.

It has been settled by a number of cases that a contract payable in gold or silver coin must be paid in such coin or its equivalent in notes: Dutton v. Pailard, 2 P. F. Smith, 109; Bronson v. Rhoads, 7 Wallace, 229; Tubilcock v. Wilson, 12 Id., 687; The Vaugh & Telegraph, 14 Id., 258. Were the law otherwise, neither the government, the banks nor the people, could procure coin for their respective needs if it was selling at a premium.

For of what avail would be a contract to deliver a certain amount of coin upon a given day if the delivery of a corresponding amount of legal tender notes would meet the requirement of such contract?

Does the fact that the interest was paid not in gold, but its equivalent in notes, affect the case? We think not. That was the precise alternative of the con tract. It was to be paid “in gold or its equivalent." If the contract was not usurious, which is conceded, surely the fulfillment of the contract according to its terms cannot be usurious. There is no substantial difference between paying in gold and paying the value of the gold in notes. Commercially, the one is the precise equivalent of the other. That the payments upon some occasions were a little more or a little less than the rates of gold on the pre

COLLOM'S APPEAL.

Non-resident debtors of this Commonwealth are not entitled to the benefit of the Exemption Act of April 9, 1849.

Error to the Court of Common Pleas of Huntingdon county.

Opinion by STERRETT, J. Filed October 2, 1882.

The only question in this case that requires any consideration is that raised by the first, third and fourth specifications of error, viz: Whether a non-resident of this Commonwealth is entitled to claim the benefit of the Exemption Act of April 9, 1849, which provides, that in lieu of the property now exempt from levy and sale on execution, issued upon any judgment obtained upon contract and distress for rent, property to the value of $300, exclusive of all wearing apparel of the defendant and his family, and all bibles and school-books in use in the family (which shall remain exempt as heretofore) and no more, owned by or in the possession of any debtor, shall be exempt from levy and sale on execution or distress for rent.

The fact that the defendant in the execution, to whom part of the fund raised thereon was awarded under the claim of exemption, was a citizen of the State of Ohio, and had resided there with his family a considerable time before the execution was issued, was distinctly found by the auditor, and is not now questioned. While non-resident debtors may, perhaps, be

within the letter of the act, we do not think they are within its spirit. As was said by Chief Justice WOODWARD, in Yelverton v. Burton, 2 Casey, 351, and afterwards quoted approvingly by Chief Justice SHARSWOOD, in McCarthy's Appeal, 18 P. F. Smith, 217, we do not legislate for men beyond our jurisdiction. The Act of 1849 was designed for our own citizens, for the families of the poor who are with us, that the rapacity of creditors might not strip them of every comfort and convenience. These expressions were first used in a case differing in some of its features from the one now before us, but they aptly express what we conceive to be the true intent and meaning of our system of exemption, of which the Act of 1849 forms a part. That clause of the act, which specifically includes wearing apparel, "and all bibles and school-books in use in the family" of the debtor, necessarily implies a domicil or family residence within the reach of State process. The Act of April 14, 1851, Purd., 416, pl. 60, "expressly limits the benefit of the exemption provided therein to the widow or children of any decedent dying within this Commonwealth." In like manner the exemption of sewing machines under the Act of 1869, extends only "to seamstresses residing in this Commonwealth." In the case first above cited, it was held that exemption cannot be claimed by defendants in foreign attachment. The Act of May 8, 1874, entitled "An Act to provide for the collection of debts against non-resident debtors," provides "that any exemption law of this Commonwealth shall not be construed to extend to any debtor not a resident thereof." It is contended that this proviso, contained in the 4th section of the act, applies only to cases of foreign attachment issued by justices of the peace under the preceding sections. It is true the purpose of a proviso generally is to except something from the enacting clause, to qualify or restrain its generality or to exclude some possible ground of misinterpretation; but this is not always the case. Taking into consideration the object of the act, as comprehensively expressed in its title, in connection with the phraseology of the proviso, we think the latter was not intended to be confined in its operation only to cases falling within the jurisdiction conferred by preceding sections of the act; but, on the contrary, it was intended to exclude all non-residents of the State from the benefit of any exemption law of this Commonwealth in any proceeding for the collection of debts due by them. But whether this be so or not, we are satisfied the spirit of the Act of 1849, when properly construed, excludes the appellee. And it is right that it should be so.

Each State has its own exemption laws for the benefit of its own citizens. If non-residents are permitted to participate in the benefits thus provided, they could claim it in every State in which they happen to own property. This would likely work great injury to creditors by withdrawing from their grasp money or property which should, in justice, be applied to the payment of their claims.

Decree reversed at the cost of the appellee, Aaron Dunsworth, and it is now adjudged and decreed that the sum of $264.05, erroneously appropriated to his claim, be paid to the appellant on account of judgment, No. 203 August Term, 1878, S. W. Collom v. A. Dunsworth.

For appellant, Messrs. Simpson & Armitage and W. H. Woods.

Contra, Messrs. Brown & Bailey and John W. Mattern.

LINDSEY et al. v. REID.

In an action against a surety, a judgment recovered against the principal debtor is, in the absence of fraud or collusion, conclusive as to the amount of the indebtedness as against the surety.

A. having issued execution upon a judgment entered against B., an order of court was made in vacation staying the writ until the next term, which order by the rule of court applicable thereto, if not then objected to or rescinded by the court, was to stand in full force as an order of the court. A bond was given by B. and C. to A., to indemnify him from all damages that might be sustained by reason of such stay of proceedings. Upon the first day of said next term a rule was granted to show cause why the judgment should not be opened, which rule was made absolute, and at that time the property remaining and embraced in the execution was sufficient to satisfy the judgment. On the trial a verdict was rendered for A. and judgment was entered thereon, prior to which time B. was adjudicated a bankrupt, and his property had entirely disappeared, none having ever come into the hands of his assignee. The order made in vacation was neither objected to, nor rescinded by the court. In an action by A. against C., the surety, upon his bond of indemnity:

Held (reversing the judgment of the court below), that the condition of the bond referred to the stay after as well as before the first day of the next term, and that, therefore, the court erred in directing a verdict for the defendant.

Error to the Court of Common Pleas of Clarion county.

Debt, by Lindsey, Sterrit & Co. against George T. Van Doren, Lewis Shanefelter and John C. Reid, of whom only the last named was served, the writ being returned as to the others, N. E. I. Pleas, payment and nil debet.

On the trial, before JENKS, P. J., it appeared that in January, 1877, the plaintiffs received from their debtor, one Sample, an antedated judgment note for $923, as security for their existing and future indebtedness for bills of