settlements and canceled by Blain Bros., and placed in their safe, or filed away, and thereby became the absolute property of Blain Bros. In these notes were also included the account of the merchant with the firm, as well as the individual account of each member of the firm. This method was adopted for the convenience of the laborers, and also for the purpose of favoring trade with the merchants, Blain Bros. keeping no store or supplies for the men. The merchants all knew of this plan and certainly favored it, and acquiesced in it, from the fact that they took these certificates in exchange for goods, and for some two years or more they regularly settled with Blain Bros. at the end of each month and took their negotiable notes for the amounts due, including all other dealings they might have during the month. This method of settlement and payment by Blain Bros. of these certificates was well known to the merchants, who dealt there with them. They knew that at these monthly settlements it was the custom and general course of business of Blain Bros. to require these certificates to be delivered up and canceled, and in payment thereof they would give their negotiable note at ninety days; but if the merchant had held the certificates over one monthly settlement day, they would give their note at sixty days. All the settlements made between them and Blain Bros. during this long period up to the last settlement, before the failure, were made in this manner, without the least objection by any one of them. It was therefore clear, beyond controversy, that the agreement between Blain Bros. and the merchant dealing in this manner was that these certificates and assignments were to be paid by the negotiable note of the firm, and that the note so given was to be taken and was taken in payment of the same. "This, certainly, was the general custom on this subject; it was the manner in which the business was transacted. The business having been carried on in this manner for two years without the least objection by any one; all adopting it and acting under it, the intention of the parties is clearly shown by it. No demand was ever made by any one for a return of these certificates until after the failure, and then it was done by certain ones, in a manner which condemns the act itself. "These negotiable notes were an accommodation to the merchant himself; they could use them in business, while the certificates could have been of no advantage at all for this purpose. When these notes fell due, they were either paid or renewed by Blain Bros., and discount paid by them upon the renewal. At the time of the failure a considerable number of such notes, taken in this manner, and renewed as already stated, were held by a number of the merchants, and some of them had negotiated the notes, and they were held by third parties. Thus far we have stated the facts as found by the auditor, and as shown in the testimony taken by him. These facts appear in the case as undisputed in our view of the testimony. After Blain Bros. were called as witnesses, and testified to conversations and understandings and agreements made with the merchants, a number of the petitioners were called, who testified that no agreement was made in reference to taking notes, etc. It is very evident that in this testimony there is a contradiction, but it arises out of this fact that Blain Bros. testify to an understanding or implied agreement arising out of the manner in which the business was transacted, while the several witnesses contradicting them refer to an express agreement. In our view of the case it is not necessary to consider the evidence where the contradiction. arises. We have come to the conclusion of fact, as found in the evidence, outside of all contradiction by the witnesses. We are, therefore, unable to find in this case any material fact which is in dispute, which could possibly change the distribution made by the auditor. The court must judge of the materiality of the disputed fact before granting an issue. "The court is not required to grant an issue, if the record show that it must necessarily prove unavailing. Benson's Appeal, 48 Penn. St. 160. "This disposes of the second issue requested in the several petitions. "We come now to consider the request for an issue as set forth in the first prayer in the petitions filed, viz. : "Whether the delivery of the certificates and assignments, and taking the notes of Blain Bros., was a waiver or extinguishment of the preference which attaches upon insolvency to the wages of laborers, under the act of 9th April, A. D. 1872. This we hold is a question of law for the court to decide. "We cannot grant an issue to decide a question of law. "We are clearly of opinion that when these certificates and assignments were delivered up and canceled, and negotiable notes given therefor at ninety days, and thereafter renewed with interest, or discount paid, as shown in this case, that the preference was waived or extinguished. It is, however, to be noted that, at the time these assignments of labor claims were canceled, there was no preference attaching to them. This preference did not attach until the insolvency of Blain Bros. This did not occur until September 27, 1883. time these surrendered orders, certificates or assignments were delivered up and canceled, and in possession of Blain Bros., and as to them no preference could attach. They were to all intents and purposes dead, so far at least as representing a debt for wages of labor due a laborer under the act of 9th April, 1872. "By the act of 24th of February, 1834, section 21 - Purd. Dig. 421, par. 85-a preference of lien is given to servants for wages not exceeding one year, etc. This is but a transcript of a much earlier act of assembly. "In the case of Silver v. Williams, 17 S. & R. 292, which was a decision under the older act, the supreme court held in the case of a decedent, that a servant waived his preference of lien by taking from the decedent, in his life-time, a single bill payable at a future day with interest. This case rules the question here, that delivering up the assignments, and taking negotiable notes at time, and renewing these with interest or discount paid will amount to a waiver of the preference given to wages of labor under the act of 1872. The first section of the act of 1872 declares that the wages due a laborer, etc. shall be a lien, etc. In the third section of the act it is termed a lien of preference. the act as in "It is apparent that both acts are analogous in principle. It was intended by the legislature in both to give a preference of lien to the persons therein enumerated. If, therefore, a servant, in the life-time of his employer, can waive the lien, why may not the laborer, before the insolvency of his employer, under like circumstances waive the preference given him by the act of 1872? If he can waive it before insolvency, surely his assignee may also waive it. "We hold that the notes taken in the manner referred to do not possess any of the distinctive qualities of a labor claim. That the preference given to wages of labor does not attach to the notes taken for the surrendered labor claims. "It would scarcely be contended that a man holding a note containing a waiver of the usual clause of exemption, going to his debtor, and renewing the debt, by taking another note for the amount, without the clause of exemption therein, then canceling the old note and delivering it up to his debtor, could afterward claim that the new note had all the qualities of the old one, and that if sued on it, the debtor could not claim the benefit of the exemption, because of the waiver contained in the old note. Yet this is in effect what is claimed for the notes taken for the labor claims. We, therefore, hold that the applications for issue must be refused, on this ground, even though the notes might not be considered as taken in payment of the labor claims. "One other fact appeals very strongly to our judgment. If these surrendered claims could be resurrected and allowed to participate in this distribution, it would work great injustice to the laborer whose wages it was the design of the legislature to protect. Many of these laborers continued in the employ of Blain Bros. up to the failure, and then had due them the full amount for which priority is given under the act of 1872. Some of them had more than $200, some had less. "In all such cases a pro rata distribution would have to be made and the laborer, instead of getting the amount allowed him by law, would have to take pro rata with the holders of these notes. Surely such was not the design of the legislature in its enactment of 9th of April, 1872. These issues would have to be framed so as to give the laborer an opportunity to be heard, and instead of six or eight issues, we might multiply them by the score. "The several issues applied for are, therefore, refused." W. H. Woods, R. Bruce Petrikin and M. M. McNeil, for appellants. Where notes or checks are given for a pre-existing debt, nothing short of an actual agreement, or some evidence from which positive inference of discharge can be made, or proof of fraud, will suffice. League v. Waring & Co., 4 Norr. 247; M' Call v. Eastwick, 2 Miles, 45; Kinsley v. Buchanan, 5 Watts, 118. As to merger, see Sutton et al. v. The Albatross, 1 Phila. 423; Powell v. Wyoming Mfg. Co., 8 W. N. C. 293; Ins. Co. of Penn. v. Smith, 3 Whart. 528. A bill of exchange or promissory note, either of a debtor or any other person, is not payment of a precedent debt, unless it be expressly agreed. Weakly v. Bell, 9 Watts, 280; Byles Bills, note, top p. 370; Tams v. Hitner, 9 Barr, 448. In the case of rent, the remedy by distress is not taken away by an action of debt for the same rent, and judgment obtained thereon, without actual satisfaction. Shitsline v. Keemle, 1 Ash, 29; Bantleon v. Smith, 2 Binn. 146. As to the law on a mechanic or material-man taking note. The acceptance of a note is not a relinquishment of a mechanic's lien, additional securities are in their nature cumulative. Kinsley v. Buchanan, 5 Watts, 118; Odd Fellows' Hall v. Masser, 12 Harr. 507; Fisher v. Rush, 21 P. F. S. 40; Herron, Trustee,v. Graham et al., 3 Phila. 176; Jones v. Shawhan, 4 W. & S. 268. The lien is but a collateral security to the debt; the claimant has also a concurrent remedy by personal action. Crean v. McFee, 2 Miles, 214; McCall v. Eastwick, id. 45; Powell v. Wyoming Valley Manuf. Co., 8 W. N. C. 293. "Where there are several concurrent remedies for the same debt, recovery even of a judgment on one of these, remains but a security until actual satisfaction of the debt has been obtained." Bantleon v. Smith, 2 Binn. 146; Drake v. Mitchell, 3 East, 251. See Rush v. Fisher et al., 8 Phila. 46. If the notes and checks were in satisfaction or extinguishment of the pre-existing debts, or claims for wages and right of preference under the act of 9th April, 1872, and its supplements, then it is a matter of fact for the jury and it is error in the court to decide it as a matter of law. Dormer v. Brown, 22 P. F. S. 408; Stone v. Miller, 4 Harr. 456; Weakly v. Bell et al., 9 Watts, 280; Leas et al. v. James, 10 S. & R. 315; Jones v. Johnston, 3 W. & S. 278; Hart v. Boller, 15 S. & R. 162; Mason v. Wickersham, 4 W. & S. 100; Brown v. Scott, 1 P. F. S. 363; Jones v. Shawhan, 4 W. & S. 263; Tams v. Hitner, 9 Barr, 448; Eby v. Hoops, 1 Pennyp. 177. The legislature, in passing the act of 1794, did not do it for the benefit of the physicians and servants who were to profit by it, but the act was passed for the benefit of the decedent. Rouse v. Morris, 17 S. & R. 330, 332; Ex parte Mason, 5 Binn. 170, 179, 182. See Kintner v. Phillips et al., 1 Kulp. 282. K. A. Lovell and Speer & McMurtrie, for appellees. A negotiable note, given in consideration of a simple contract debt due, is a discharge of the simple contract. Thacher v. Dinsmore, 5 Mass. 299. If a person lend money and take a note, payable at a future day, in payment of it, and then parts with the note for a valuable consideration, he cannot sue, either on the note or on the original cause of action, till he has taken up the note. If he could the debtor might be liable to two suits, one by the holder upon the note and the other by the creditor on the original cause of action. Small v. Jones, 8 Watts, 265. The right of preference given to servants by act of assembly, out of the assets of a deceased debtor, is extinguished by their having taken from him single bills, payable at a future day with interest. Silver v. Williams, 17 S. & R. 292. PER CURIAM. These six appeals were argued together. They are from the same decree and present the same question. The auditor and court concur in the finding of all the controlling facts. On those facts the opinion of the learned judge contains a clear and correct statement of the law applicable thereto. There was no error in refusing the application for an issue when, under the facts not disproved, the law |