Hackney vs. Gorley.

paragraphs consecutively numbered, yet, as suggested by plaintiff's counsel in his brief, the plaintiff in a bill in equity never has been required to number as the first paragraph in his bill the formal language "your orator complains and says." The new practice act must be given a reasonable construction.

And now, February 29, 1916, for the reasons stated in the opinion herewith filed, the motion for judgment for the defendant on the questions of law raised by the affidavit of defense and to have stricken from the record the plaintiff's statement of claim is overruled and dismissed.

Arrigo & Co. vs. Sposato.

Appeal From Judgment of Justice-Entering of Judgment on a Judgment Note in the Same Case.

Where plaintiff brought suit before a Justice of the Peace and produced as evidence of its claim a judgment note, secures judgment against the defendants, and there was an appeal by them, and plaintiff enters judgment, D. S. B., on the judgment note, on petition by only one of the defendants, the Court will not strike off the judgment if the plaintiff takes a non-suit and pays the costs in the appeal.

Petition of Joe Sposato, one of the Defendants, to Strike Off Judgment. D. S. B. No. 7 February Term, 1916. C. P. Washington County.

Vernon Hazzard, for rule.

D. M. McCloskey, contra.

MCILVAINE, P. J., January 8, 1916.-The plaintiff in this case brought suit against the two defendants before a justice of the peace in an action of assumpsit for a sum not above $300. At the trial of the case the palintiff produced before the justice, as evidence of its claim (so the record shows) a judgment note and claimed that $90.12 thereof remained unpaid, and the justice entered judgment against the two defendants in favor of the plaintiff for that sum. An appeal was taken by the defendant and that appeal is now pending in this Court to No. 396 November Term, 1915. Judgment was entered before the justice of the peace on October 9, 1915. On November 9, 1915, the same plaintiff entered judgment in this Court against the same defendants for $90.26 on a judgment note and an execution was issued to collect the amount of said judgment.

On November 15, 1915, the petitioner, Joseph Sposato, one of the above named defendants, presented his petition alleging the facts that we have just stated, and asked for a rule on the plaintiff to show cause why the judgment entered on the warrant of attorney to D. S. B. No. 7 February Term, 1916, should not be stricken from the record. An examination of the judgment entered on the D. S. B. docket shows no irregularity. Any one examining the record and the papers on file would be led to say that the judgment was regular and valid. This being the case, can this Court on a petition of one of the defendants strike off the judgment by reason of facts that do not appear on the face of the record and that could only be proved by the production of some other record identified by the testimony of some living witness. In other words, can this Court on the petition that was presented and the rule that was granted, of its own motion refer to the record in our Courts where an appeal is docketed and see that the judgment note upon which judgment was entered to No. 7 February Term, 1916, is the same judgment note that was produced before the justice of the peace in the other case? There is nothing whatever in either record to

Arrigo & Co. vs. Sposato.

identify the judgment note that was introduced before the justice as the one that was presented to the prothonotary and upon which he entered judgment to No. 7 February Term, 1916, and it will be recollected further that this case was set down for argument on petition and answer.

But granting that this Court was able to find that the note introduced in evidence before the justice was the same as that upon which judgment was entered by the prothonotary, does that fact alone give the Court power to strike off the judgment? We think not. The defendants elected to take an appeal from the judgment of the justice, and that appeal was filed in this Court, and under our rules it became a suit pending, and the legal controversy between the plaintiff and the defendants became an issue to be tried de novo. This being the case, the plaintiff was put in a position to elect whether or not it would prosecute its case against the defendants on the appeal or whether it would enter judgment by virtue of the warrant of attorney attached to the judgment note. To do this it would necessarily require the plaintiff to pay the costs in the appealed case, and perhaps it would have been more regular for it to have entered a voluntary non-suit in the appeal and then entered its judgment. But that can yet be done:

It has been decided in the Township of Moreland vs. Gordner, 109 Pa. St., 116, that a plaintiff in an appeal from a justice of the peace taken by a defendant, can enter a voluntary non-suit in that appeal, and if he does so that leaves no judgment before the justice, and having done this and paid the costs he clearly has a right to use the judgment note as a basis for the entry of a judgment in Court upon a warrant of attorney.

If both of the defendants in this case had joined in a bill asking that the plaintiff be enjoined from proceeding further under the judgment entered on the warrant of attorney until the appeal case was disposed of, or if they had presented a petition asking that the judgment entered upon the warrant of attorney be opened, stating facts which would show that they had a good defense, then they might have been entitled to relief against the execution which has been issued. But only one of the defendants having asked for a rule simply to strike off the judgment, we are clearly of the opinion that the rule must be discharged, for it is decided in Lawrence vs. Smith, 215 Pa., 537; Breden vs. Gilliland, 67 Pa., 37, and Hall vs. Publishing Co., 180 Pa., 561, that opening a judgment and striking it off are two entirely different things, and that a judgment will not be stricken off if there be no averment in the petition, and proof to sustain that averment, that there was irregularity or an invalidity in the judgment appearing upon the face of the record. To do equity, however, between the parties in this case, in view of the facts developed at the hearing, and to protect the prothonotary, we feel that the plaintiff in this case should take a voluntary non-suit in the appeal case and pay the costs of that case, and on condition that it does this this rule will be discharged.

And now, January 8, 1916, this rule came on to be heard upon petition and answer and was argued by counsel, whereupon, upon due consideration, it is ordered, adjudged and decreed that the rule be discharged on condition that the plaintiff take a non-suit and pay the costs in the appeal docketed to No. 396 November Term, 1915.

(See Brumbaugh vs. Price, 36 County Court Reports, 497.)

Central Trust Co. vs. Rieger et al.

Execution Attachment- Superintendent and Supervising Architect-Act of April 15, 1845, P. L. 460.

Under the Act of April 15, 1845, P. L. 460, an attachment does not lie against commissions due and to become due from an employer to an employe engaged as superintendent and supervising architect of construction work.

Execution Attachment. No. 62 April Term, 1916. C. P. Allegheny

County.

H. R. Birmingham, for plaintiff.

Langfitt & McIntosh, for defendant.

BROWN, J., February 16, 1916.—Upon a judgment D. S. B., entered by the Central Trust Company against Charles J. Rieger and Louise M. Rieger, at No. 595 January Term, 1916, plaintiff issued an execution attachment at No. 62 April Term, 1916, summoning the Syria Improvement Association and others, as garnishees. Thereupon, Charles J. Rieger presented his petition-upon which a rule was granted upon plaintiff to show cause why the attachment should not be dissolved:

"So far as the same affects the moneys due or to become due to Charles J. Rieger, defendant, from the Syria Improvement Association, garnishee, under the written agreement dated September 21, 1914."

Plaintiff's answer substantially admits the allegation of defendant's employment under the agreement; but denies that the compensation therefor is exempt from attachment under Section 5 of the Act of April 15, 1845, P. L. 460-Purdon's Digest, 13 Ed., Vol. 4, page 5053:

"The wages of any laborer, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer."

This Section 5 is interpreted not narrowly but broadly in the interest of both employee and employer. It protects the salary of a chorister (Catlin vs. Ensign, 29 Pa., 264), and a salesman's commission, given him by his employer, as compensation for his individual efforts in making sales (Hamberger vs. Marcus, 157 Pa., 133).

In Little vs. Balliette, 9 Sup., 411, it is said:

*

*

"The Act of 1845 is frequently spoken of, for convenience' sake as an exemption law, but more broadly it is a law forbidding the taking of jurisdiction by attachment over the subject-matter. It was not intended to confer a personal privilege upon laborers merely, but was enacted for the protection of their employers as well. For this reason

it was held that the laborer could not waive its provisions, and thereby subject his employer to the liability, to the expense and annoyance of attachments."

Salary, wages, commissions, recompense, compensation-as applied to services rendered or to be rendered by an employee to an employer-are interchangeable terms having the same meaning. It would be juggling with words to hold the contrary. For these words have a natural, ordinary, well understood meaning in trade and business. As said in Hamberger vs. Marcus, 157 Pa., 133:

"It is what the employer owes his employee, for personal services rendered in that relation, which is exempt from attachment in the hands of the employer, and it matters not whether it is called wages or salary. In Commonwealth ex rel., Wolfe vs. Butler, 99 Pa., 535, Chief Justice Sharswood, speaking for this Court, said:

The truth is, and lexicographers seem to hold, that if there is any difference in the popular sense between 'salary' and 'wages' it is only in the appli

Central Trust Co. vs. Rieger et al.

cation of them to more or less honorable services. A farmer pays his farm hands, in common speech, 'wages,' whether by the day, the week, the harvest or the year. If for any reason he has occasion to employ an overseer his compensation, no matter how measured, is called 'a "salary." An iron master pays his workmen wages, his manager receives a salary. A merchant pays wages to his servant who sweeps the floor, makes the fire and runs his errands, but he compensates his salesman or clerk by a salary. How can it make any difference in what way the compensation is ascertained?""

* *

This brings us to the written agreement of September 21, 1914, between the Syria Improvement Association (employer) and Charles J. Rieger (employee). As expressed in the agreement the Association had entered into a contract with Huehl, Schmidt & Holmes, architects, of the City of Chicago, "to make all necessary sketches, plans, detail drawings and specifications * and * * * do all necessary work to be done by architects for the erection and completion of a Shrine Temple Building *-including furniture, equipment, lighting heating *" at a cost not to exceed $400,000. Then follows this provision in the agreement: "Said party of the second part, Charles J. Rieger, shall superintend and supervise the construction of the building in accordance with the plans and specifications and detail drawings prepared by Huehl, Schmidt & Holmes, and shall make estimates from time to time of the amount and value of the work done on said building by the contractors for the purpose of making payments to said contractors according to the terms of their contracts." And this provision:

"In consideration of such services on the part of the party of the second part, the party of the first part hereby agrees to pay the party of the second part an amount or sum equal to 2/6 of six per cent. of the aggregate amount of all the contracts for the erection and completion of said building."

If, instead of this quoted provision as to compensation for services, the contract had read: "In consideration of such services on the part of the party of the second part, the party of the first part agrees to pay the party of the second part $10 per day"-could there be any doubt that such sum was was a wage rate, or salary, or recompense? If there could not be any doubt as to that, there can be none as to the two per cent. compensation mentioned in the agreement.

Rieger's employment demanded skill and experience of a high orderand for that was to be paid the compensation named in the contract. Instead of that employment, he might have been employed as foreman or superintendent over a gang of laborers or a larger body of workers in any kind of construction work. The differences in employment-whether requiring a high degree of skill (such as that of superintendent or supervising architect) or a lower degree of ability (such as foreman or superintendent over ordinary construction work) make no difference in the application of the exemption allowed by the Act of 1845.

The very nature of Rieger's employment brings him within the exemption terms of the Act of 1845.

Rule absolute-and attachment dissolved and set aside so far as the same affects the moneys due or to become due to Charles J. Rieger from the Syria Improvement Association, under the agreement of September 31, 1914.

In re Osteopathic Examination.

Physicians and Surgeons-Osteopathy-English Language-Examination in.

A student of foreign birth should not be admitted to examination under the Act of June 1, 1915, P. L. 687, nor licensed as an osteopathic physician, when he cannot read and write the English language sufficiently to understand and answer the examination papers in that language, and be able to read and understand the rules and regulations promulgated by the Department of Health, or the proper municipal authorities.

This Department is in receipt of your favor of the 2nd inst. You state that there is in the Philadelphia College of Osteopathy a Russian, who can neither write nor speak the English language sufficiently to make himself understood, who is taking the course prescribed under the Act of June 1, 1915, P. L. 687. You ask for an opinion as to whether the Board may employ an interpreter in examining such applicant, who cannot express his knowledge in the English language.

The Act of June 1, 1915, is an amendment of the Act of March 19, 1909, P. L. 46. In Section 5 of the Act of 1909 it is provided that examinations before your Board shall be conducted in writing, in accordance with rules and regulations prescribed by said Board, and that the examination papers and reports shall be kept for reference and inspection for a period of not less than five years. While there is no positive requirement that the examination papers shall be submitted in the English language I am of the opinion that this is necessarily implied.

The Public School Code of 1911, Article XVI., Sec. 1607, requires the teaching of the common English branches. The Child Labor Bill of May 13, 1915, P. L. 286, requires that a minor within the provisions of the Act shall have completed a certain course of study in the English language. By the Act of May 31, 1893, P. L. 188, the records in the various counties of the State are required to be kept in the English language. All of these Acts recognize that the English language is the official language of the Commonwealth.

A knowledge of the language sufficient to read and write it is necessarily implied by Section 12 of the Act of March 19, 1909, which provides:

"Osteopathic physicians shall observe and be subject to all State and municipal regulations relating to the control of contagious diseases, the reporting and certifying of births and deaths, and all matters pertaining to public health, the same as physicians of other schools, and such reports shall be accepted by the officers or department to whom the same are made."

Our State and municipal regulations relating to the control of contagious diseases are published in the English language. It would be impossible for an osteopathic physician to understand the State and municipal regulations relating to these diseases, or to make report and certify as to births and deaths, in the English language unless he had such knowledge thereof as to enable him to read and write in English.

You are, therefore, advised that an applicant should not be admitted to examination under the Act of June 1. 1915, nor licensed as an osteopathic physician, who cannot read and write the English language sufficiently to understand and answer the examination papers in that language, and to be