and that, such being the case, the land should be adjudged as a common fund for the indemnity of both parties, under the authority of Fleischner v. Sumpter, 12 Or. 166. While, in a sense, the equities of these parties became effective at the same time, simply because of the peculiar circumstances under which the respective deeds and the mortgage were delivered, yet we have seen that the plaintiff took a superior equity, which has not been surrendered or impaired through his mistake or inadvertence, and, no disadvantage accruing to the company through such mistake, there was no error in granting the relief demanded by plaintiff, and the decree of the court below will therefore be affirmed. Affirmed.

EQUITY-MISTAKE-RESTORATION OF CANCELED MORTGAGE.-If a new mortgage is substituted in ignorance of an interven ing lien, the mortgage released through mistake may be restored in equity, and given its original priority as a lien, where the rights of innocent third parties will not be affected: See monographic note to Young v. Shaner, 37 Am. St. Rep. 705, on the revival of mortgages when satis fied by mistake and the enforcement of a new mortgage as the continuation of the lien of a prior one: Heisler v. Aultman, 56 Minn. 454; 45 Am. St. Rep. 486, and note. Purchase money is the first lien on land: Note to Demeter v. Wilcox, 37 Am. St. Rep. 427.

PAYMENT-ACCEPTANCE OF NEW NOTE AND MORTGAGE FOR OLD ONES.-A mortgage is discharged only by payment or release, and not by a change in a renewal of the note or debt which the mortgage was given to secure: Bunker v. Barron, 79 Me. 62; 1 Am. St. Rep. 282, and note. The taking of a note, by a creditor, for an antecedent debt, does not extinguish the debt, unless it is received by express agreement as payment: Note to Robinson v. Leach, 48 Am. St. Rep. 809. A former debt cannot be extinguished by the acceptance of secur ity or of an undertaking of equal degree, unless it is received in satisfaction, or is intended as an abandonment of the remedy on the first contract; and these are questions for the jury: Yates v. Donaldson, 61 Am. Dec. 283. This rule applies when a new note is received for an old one: Hart v. Boller, 15 Serg. & R. 162; 16 Am. Dec. 536. The taking of a new note in substitution for one secured by mortgage does not extinguish the debt evidenced by the latter so as to discharge the mortgage, unless such was the intention of the parties, shown by something be sides what arises from the mere act of substitution: Austin v. Bailey, 64 Vt. 367; 33 Am. St. Rep. 932, and note.

MAXIMS-EQUAL AND UNEQUAL EQUITIES.-As between equal equities the law prevails: Hunter v. Lawrence, 11 Gratt. 111; 62 Am. Dec. 640; Chamberlain v. Thompson, 10 Conn. 243; 26 Am. Dec. 390. As between equities unequal in point of time, but otherwise equal, the first in order of time must prevail; Walton v. Hargroves, 42 Miss. 18; 97 Am. Dec. 429, and note; Ingram v. Morgan, 4 Humph. 66; 40 Am. Dec. 626. If one party has an equity better than the other, priority of time is immaterial, and the superior equity must prevail: Frost v. Wolf, 77 Tex. 455; 19 Am. St. Rep, 761; note to Walton v. Hargroves, 97 Am. Dec. 434.

JOHNSTON V. BARRILLS.

[27 OREGON, 251.]

PAYMENT.-Acceptance of a note for the amount of a debt is not a payment thereof unless the parties expressly so agree.

EXECUTION.-A LABORER'S RIGHT TO PREFERENCE is not extinguished nor waived by his taking a negotiable note from his debtor for the amount due for wages.

EXECUTION.-PREFERENCES IN FAVOR OF LABORERS and employés do not include persons who own and operate thrashing machines.

LABORERS are those who perform with their own hands the contract they make with their employers, and not those who are mere contractors to have work done, and whose compensation is the profit realized on the transaction.

EMPLOYÉS. This term embraces laborers and servants, and those occupying inferior positions.

PRESUMPTIONS.-It is presumed that regular and ordinary means are adopted for a given end. It will therefore be presumed when a claim is made for thrashing grain, that the work was done in the ordinary manner, by a thrashing machine, and not by mere manual labor.

EXECUTION.-PREFERENCE IN FAVOR OF WAGES does not extend to moneys due for thrashing grain in the ordinary manner by the aid of machinery.

Proceeding to establish and enforce a preferred claim to the proceeds of a sale of attached property. Two partners, doing business under the firm name of Johnston Brothers, commenced an action against the defendant, and attached a quantity of his grain. The firm of Brown & Jones intervened to establish a laborer's claim against the attached property, and, under the provisions of the statute referred to in the opinion, filed a statement of their claim, under oath, with the attaching officer, for one hundred and twenty-nine dollars and eighty-eight cents, for thrashing grain. The firm demanded the payment of one hundred dollars thereon, as preferred creditors, for services performed for the debtor within ninety days next preceding the attachment. The sheriff reported the statement of claim to the court, and the plaintiffs filed exceptions thereto as follows:

1. Said claim is not founded on a claim for wages; 2. Said claim is not the claim of an employé or laborer, but is, upon its face, and in fact, the claim of contractors; 3. That said claim is not such as is contemplated, provided for, or included in the act under which Brown & Jones seek to establish their claim as preferred; 4. That if said claim could, in the first instance, have been considered as a preferred claim, upon the attached property, the claimants have waived their right, so far as the plaintiffs are concerned, because they have received payment of their original debt and claim by receiving and accepting a negotiable promissory note for the full amount from the defendant debtor; 5. That the

taking and accepting of said note was, as to plaintiffs, full payment of the claim of Brown & Jones, under their alleged contract. An affidavit was filed showing on behalf of plaintiffs, that the Johnston Brothers were interested in the attached property to the extent of their demand against Barrills, as alleged in their complaint; and that the claimants had exhibited to affiant a note accepted by them from Barrills for the full amount of their thrashing debt. The court found that the exceptions and affidavit were sufficient to require the claimants to establish their demand by judgment. This they did not do, so the claim was rejected, and the proceeding dismissed. From this judgment the claimants appealed.

William Wilson, for the appellants.

Dufur & Menefee, for the respondents.

255 MOORE, J. Two questions are presented by the record for our consideration: 1. The sufficiency of the exceptions to the statement filed by the claimants; and 2. Whether they are entitled to be considered preferred creditors under the provisions of the act. The statute (Laws 1891, sec. 1, p. 81), in substance, provides that any person interested in the property which is sought to be subjected to the preferred claim of a laborer or employé may contest the claim, or any part thereof, by filing exceptions thereto, supported by affidavit, in the court having jurisdiction of the property, and thereupon the claimant shall be required to establish his claim by judgment in such court before any part thereof shall be paid. It will be observed that the first, second, and third exceptions are equivalent to a demurrer to the statement, except the allegation in the second that it is, upon its face and in fact, a claim of contractors," but this allegation is not supported by affidavit; while the fourth and fifth exceptions present facts intended as a defense to the statement, and the affidavit refers to them only.

1. It is not alleged in any of the exceptions that the note was accepted by the claimants under an agreement between them and Barrills that it should discharge the debt of the latter for which it was given. "Nothing," says Lord, C. J., in Black v. Sippy, 15 Or. 574, 256 "is better settled than that accepting a note is not payment of an account, nor is accepting one note in renewal of another payment of the old note, unless there is an agreement that the note should be accepted in payment." From all that appears in these exceptions, the claimants may have taken the note as a mere evidence of the debt, and with no agreement or inten

tion to accept it in payment of their account. As we view the statute, the exceptions therein provided for are in the nature of an answer to a petition in intervention, and should put in issue the material allegations of the claimants' statement, or some of them, before they could be required to take any steps looking to the establishment of their claim by judgment. If the taking of a negotiable promissory note on account of a precedent debt is to be presumed to be in satisfaction of it, as held in some states (2 Daniel on Negotiable Instruments, sec. 1260), it would have been unnecessary to allege any agreement between the claimants and Barrills on the subject: Bliss on Code Pleading, sec. 175; but this court, in Black v. Sippy, 15 Or. 574, having adopted the language of Lord Holt in Clark v. Mundal, 1 Salk. 124, that "a bill shall never go in discharge of precedent debt, except it be part of the contract that it should be so," the discharge of the debt on account of the thrashing cannot be presumed from the acceptance of Barrills' negotiable promissory note, and, not having alleged that the note was accepted under an agreement that it should be in payment of the account, it follows that such exceptions did not present any issue requiring further proceedings in support of the claim.

2. The act under consideration, so far as it applies to the case at bar, provides that when the property of any person shall be seized upon any process of any court of this state, then the debts owing to laborers or employés which have accrued by reason of their labor or employment, 257 to an amount not exceeding one hundred dollars to each employé, for work or labor performed within ninety days next preceding the seizure, shall be considered and treated as preferred, and such laborers or employés shall be preferred creditors, and shall first be paid; but, if there be not sufficient to pay them in full, the same shall be paid to them pro rata, after paying costs. Any laborer or employé desiring to enforce his claim for wages shall present a statement under oath, showing the amount due, after deducting all just credits and setoffs, the kind of work for which said wages are due, and when performed, to the officer or person charged with the execution of said process, within ten days after the seizure of the property on any execution or writ of attachment. The claimants, desiring to avail themselves of the foregoing provisions, filed with the said sheriff their statement under oath, from which it inter alia appears "that said firm was employed by the said Joseph Barrills on or about the third day of October, 1894, to work for said Barrills in thrashing the crop of grain raised by said Barrills during

the season of 1894, at the rate of five cents per bushel for wheat
and four cents per bushel for oats; and that under said contract
said firm began to work on the third day of October, 1894, and be-
tween that day and the eighth day of October, 1894, said firm per-
formed work, services and labor five days, and thrashed eighteen
hundred and twenty bushels of wheat, amounting to ninety-one
dollars, and nine hundred and seventy-two bushels of oats,
amounting to thirty-eight dollars and eighty-eight cents, and in
the aggregate amounting to one hundred and twenty-nine dollars
and eighty-eight cents. It will be observed, by an examination of
the act, that its provisions 258
are intended to secure to a laborer
or employé the benefit of his wages, when his employer's property
has been levied upon by virtue of any judicial process. A proper
definition of the terms "laborer," "employé," and "wages" becomes
necessary to correctly interpret the act. Under a statute of Penn-
sylvania, quite similar to the one in question, the supreme court of
that state held that laborers are those who perform with their own
hands the contract they make with their employer: Seider's Ap-
peal, 46 Pa. St. 57; and in a later case (Wentroth's Appeal, 82 Pa.
St. 469), Mr. Justice Sharswood, in construing a similar statute,
said: "The act meant to favor those who earned their money by
the sweat of their own brows, not those who were mere contract-
ors to have the work done, and whose compensation was the profit
they would realize on the transaction." In Campfield v. Lang, 25
Fed. Rep. 128, it was held that one who performed service in saw-
ing up lumber, which involved capital, machinery, and the labor
of employés, was not a "laborer," and that a given compensation
per thousand feet to be paid for sawing the lumber was not
"wages," in the sense in which the terms were used in the statute.
In People v. Board of Police, 75 N. Y. 39, Miller, J., in defining
one of the terms, says: "Employés are usually considered as em-
bracing laborers and servants, and those occupying inferior posi-
tions." From the whole scope and tenor of the act in question,
it is apparent that the terms "laborer" and "employé," as there
used, are synonymous, and relate to a class of persons who, by
their own manual labor, earn a livelihood: Endlich on Interpreta-
tion of Statutes, sec. 99. The words "employer" and "employe"
are doubtless the outgrowth of the old terms "master" and "ser-
vant," and have been adopted by reason of, and in deference to,
the exalted position labor has acquired by the education of the

masses.

259 3. The statute has wisely provided an easy and speedy remedy by means of which the laborer or employé, in case the