
    WOLFE AND McLEAN’S APPEAL.
    A miner may assign his olaim against his employer, and in suoh case, the assignee of the olaim is entitled to the miner’s preferenoe.
    An order given to a miner for his wages, does not extinguish his preferred olaim, unless expressly so agreed.
    Appeal from the Court of Common Pleas of Allegheny County, No. 23, October and November Term, 1877.
    Goods had been supplied to the miners in a colliery, upon orders of the operators, who afterwards made an assignment for thé benefit of creditors, and on distribution of the assigned estate, the holders of the orders claimed the preference as assignees of the miners’ claim. The distribution was finally made in accordance with the following opinion by
    Ewing, P. J.
    On the main questions of law and fact excepted to, the auditor is clearly right. -The checks and orders of J. P. Walters & Co., on Wolfe & McLean, the exceptants, were accepted by the miners as cash ; but even if they were only received as collateral for the labor performed, when they were accepted and paid by Wolfe & McLean, the claim for labor was fully paid. It was immaterial to the miners whether Wolfe & McLean had been paid in' advance or were to be paid in future by Walters & Co. The outside evidence relied on by exceptants to control or rather to contradict the papers entirely fails; in fact it establishes the facts to be presumed from the papers.
    It shows that tor their mutual benefit Wolfe & McLean and Walters & Co. arranged between themselves to compel the miners to deal at the store of Wolfe & McLean; Walters & Co. were to give orders to their workmen on Wolfe & McLean for merchandise in their line. Wolfe & McLean accepted and paid these orders on the credit of Walters & Co., the result was the merchants sold their goods and the coal operators paid their hands largely on credit thus obtained — so far as the evidence discloses the workmen were not consulted about it, and seem to have no concern in it further than that they were compelled to take these orders in lieu of cash in payment of their labor.
    If Walters & Co. had paid their men in checks on a bank and had by arrangement overchecked, or otherwise borrowed the money, the bank would claim the miners preference on account of wages paid, with like right and more equity than Wolfe & McLean claim on their accounts for orders filed. To permit Wolfe & McLean to take the fund out of the hands of the miners would be a violation of both letter and spirit of the Act passed for the benefit of workmen.
    The due bills issued to miners on account of or in settlement for work done and now claimed by Wolfe & McLean on account of themselves and other holders thereof, stand in a position very different from that of the orders and checks. In form they are but the admission of an amount due the miner for work done issued to him and in his own name. The presumption is that they were taken merely as collateral to, and did not extinguish the claim for wages. True, they may have been taken in payment, if so agreed on, and in that case the claim for wages would be extinguished, and of course the statutory lien or preference for the wages would be extinguished.
    The presumption that the debtor’s own note is taken but as collateral to the claim is much stronger than where the note of a third party has been taken. It should require clear evidence to rebut this presumption ; whereas, in this case, the paper is a mere due bill payable at next pay day, and where its acceptance as payment would release a preference which the creditor had in law.
    The auditor finds that these due bills were taken by the miners in payment. We are unable to agree with this finding. The due bill was charged to the miner when it was issued — but this alone would not be sufficient. The foreman testified that the due bills were usually issued when the miners quit work and were in full, though in some cases they were for a part of the amount owing. At next pay day they were paid to the holders, who sometimes "were the original parties and other times strangers. We are of opinion that the auditor should have distinguished these due bills from the other claims presented by the exceptants; and should have found that their acceptance by the miners did not extinguish their claims for wages. The transfer of the debt carried with it the securities thereof, and the right of the statutory “lien or preference” passes with the claim to the assignees.
    Except as to the right of the holders of the due bills, as marked in “Exhibit H,” amounting to $465.14, the exceptions to the auditor’s report are dismissed.
    The report is referred back to the auditor to report a pro rata distribution to the claimants in accordance with the views above indicated.
    Wolfe and McLean then appealed complaining of the ruling of the Court in not allowing them a pro rata distribution in the account of tbe checks which they had paid.
    
      Messrs. Kennedy and Doty, Esq., for appellants argued,
    that, the assignee of a claim succeeds to all the rights of the assignor, including the preference for wages; Mehaffy vs. Share, 2 P. & W. 361; Farmers and Drovers Bank vs. Fordyce, 1 Barr 454; Fitzsimmon’s Appeal, 4 Barr 248; Foster vs. Fox 4 W. & S., 92; 4 Barr 119; Dubois’ Appeal, 2 Wright 231; Moore vs. Cornell, 18 P. F. S., 320; Roberts vs. Halstead, 9 Barr 32; Cathcart’s Appeal, 1 H. 416. A voluntary assignment which does not pass the legal title, may operate as an equitable assignment; Bond vs. Insurance Co., 9 Phila. 149; Phoenix Iron Co. vs. Philadelphia, 2 W. N. C., 596; Jermyn vs. Moffit, 25 P. F. S., 399; Caldwell vs. Hartupee, 2. P. F. S., 74; Philadelphia Safe Deposit Insurance Company's Appeal, 2 W. N. C. 593.
    
      D. F. Patterson, Esq., contra.
    
   The Supreme Court affirmed the decision of the Court below on October 15th, 1877, in the following opinion :

Per Curiam.

The auditor’s report finds that there was no assignment, legal or equitable, of any of the orders paid by the appellants given to miners for their wages, nor any arrangement which looked topreserving the lien, in favor of the appellant. There is some evidence looking in that direction, but we cannot say its weight is sufficient to overturn the finding of the auditor, affirmed by the Court. Without some fact to remove the presumption of a satisfaction of the wages, by payment of the orders, the case does not fall within the principles ruled in the Philadelphia Safe Deposit Co.’s Appeal, 2 W. N. C., 593.

Decree affirmed, with costs to be paid by appellants, and appeal dimissed.  