been given before the passage of the act of 1857, made the June Term, 1860. right of the plaintiff to hold the defendant responsible for wages, a vested right, which no subsequent legislation could STREUBEL impair."

The legislature, by chap. 86, Sess. Laws 1855, p. 87, provided, in substance, that all railroad companies within this state, should be obligated, in law, to pay laborers on the lines of railroad being constructed, wages which might be due from any contractor or sub-contractor, and the act gave laborers the usual remedies by action directly against the corporation. The act contained words of restriction, which declared that no suit should be maintained under its provisions until the laborer should have given thirty days' notice. in writing to the president or secretary of the company, that wages were due him, and that the company was required to make payment of such wages so due, stating the amount claimed. By chapter 27 of the Sess. Laws of 1857, p. 32, the legislature repealed the aforesaid provision of the act of 1855, and provided in lieu thereof, that whenever any laborer upon any railroad in this state, should have a just claim to the amount of thirty dollars or more, for labor performed on such railroad, against any person being a contractor with the company for the construction of any part of the road, the company should be liable to pay such laborer the amount of such claim; provided the laborer gave notice to the company that he had such claim, within thirty days after the claim had accrued; and provided further, that the claim had accrued within sixty days prior to the giving of the notice. This is the substance of the two acts which materially af fect the correctness of the instruction given.

The action was not commenced until the law of 1857 had gone into effect, and hence it was contended in the circuit court, and the point is relied upon here, that though the work might have been performed, and the notice given, while the act of 1855 was in force, yet it was competent for the legislature to change, and it had, in fact, changed the remedy, before the suit was brought, and that therefore the respondent could not recover, unless his case should come

MIL. & MISS.
R.R. Co.

June Term, within the provisions of the former act. It appears to us that this argument is unanswerable.

1860.

STREUBEL

V.

R.R. Co.

This new

It is manifest that the law of 1855 gave a laborer upon a MIL. & MISS. railroad, a right of action against a company, where none would have existed at common law. In the ordinary and regular course of justice, the laborer would have been compelled to bring his action alone against the party employing him. But this act, and the subsequent one of 1857, enables a party to bring a suit, under certain limitations, directly against the corporation, although, in fact, no contract, express or implied, exists between him and such corporation. Notwithstanding this additional remedy, the employee might still pursue the principal debtor, and enforce payment against him, if he saw proper. remedy is one given by the statute, and the legislature could rightfully alter or modify this remedy, as might be deemed expedient, without affecting any contract existing between the parties. The circuit court held, that the notice having been given by the respondent before the passage of the act of 1857, that he should hold the company liable for his wages, a vested right accrued to him, which no subsequent legislation could impair. But, as we have remarked, the act of the legislature gave the laborer a remedy against the company-one which he would not have without the statute-and made it the condition of maintaining his suit, that he should give a certain notice. The giving of the notice was a condition precedent to his bringing his action, but how could it create a vested right in the remedy? All the adjudged cases declare the principle, "that legal remedies are, in the fullest sense, under the rightful control of the legislatures of the several states, notwithstanding the provision in the federal constitution, securing the inviolabilty of contracts; and that it is not a valid objection to legislation on that subject, that the substituted remedy is less beneficial to the creditors than the one which obtained at the time the debt was contracted." Morse vs. Goold, 1 Kern, 281; Bigelow vs. Pritchard, 21 Pick., 169; Walter vs. Bacon, 8 Mass., 468; Smith vs. Morrison, 22 Pick., 430;

4

1

V.

Stocking vs. Hunt, 3 Denio, 274, and the cases referred to in June Term, 1860. the above decisions. We do not think the respondent had any vested right in ABLEMAN et al. the mere remedy given him by the law of 1855, and as he Roтí et al. did not bring his suit until the act of 1857, altering, in some respects, this remedy, had gone into operation, he can only recover under the latter statute..

Judgment affirmed.

ABLEMAN and another vs. ROTH and others.

SAME VS. FAIRCHILD and others.

SAME VS. O'GRANNIS and others.

A bill in equity, for the purpose of obtaining a new trial of an action at law, or enjoining the collection of the judgment therein, was properly dismissed by the court, where no evidence was produced, showing, or tending satisfactorily to show, that the complainants had a good defense to the action at law, or that the judgment was contrary to equity; although it appeared that the action at law was improperly brought to trial by the plaintiff therein, in violation of a known verbal agreement between the attorneys on both sides for its postponement, whereby the defendants, in such action, and their attorneys, were prevented from being present at the trial, or offering any evidence in support of their plea to such action.

As to the amount of proof which should be required, to show that injustice has been done by a judgment so obtained, the same rule should prevail in a proceeding in equity for a new trial merely, which prevails in a court of law.

APPEALS from the circuit court for Milwaukee county. These cases depended upon substantially the same state of facts, and were heard and decided together. The principal case was as follows: Ableman and Cotton filed a bill in equity, in February, 1857, against Nelson Roth, Volkert W. Roth, S. S. Conover and one Donovan, to enjoin proceedings upon executions, which had been issued upon a judgment in favor of the defendant, Nelson Roth, against the complainants. The bill states that on the 20th of December, 1855, Nelson Roth, sued the complainants in an action of trover, in the circuit court for Iowa county, to recover the value of certain watches, plate and jewelry, which the complainants, as marshal and deputy marshal of the United States, for VOL. XII-6

RоTH et al.

June Term, the district of Wisconsin, had taken, on an execution from 1860. the United States court of that district, upon a judgment ABLEMAN et al. against said Volkert W. Roth; that the property so taken was at the time of said levy, the property of said Volkert W., and subject to said execution; that the same was duly sold by them for $1741,87, the amount of said execution, and was not, at the time, worth over $2,200; that the complainants had, therefore, a full and complete defense upon the merits to said action of trover, and that such defense was fully set up in their plea, and notice filed in said cause; that they had issued commissions to take the testimony of witnesses in the state of New York, to be used on the trial of said action, but the taking of one of said depositions having been delayed on account of the absence of the witness, so that it was doubtful whether it would be received in time for a trial of said action at the term of the Iowa circuit court, appointed to commence on the 15th day of September, 1856, it was on the 13th of that month, mutually agreed between A. R. R. Butler, Esq., of Milwaukee, an attorney of the complainants, in said action, and Thomas Hood, Esq., of Madison, the attorney of said Nelson Roth, that for the purpose of avoiding unnecessary expense and loss of time, and for the convenience of both parties, the said cause should remain in its then state, and that nothing should be done therein, until the said Thomas Hood should communicate with said Butler, at Milwaukee, and a time should be agreed upon, when the said Hood and Butler should go together to Mineral Point, in the county of Iowa, for the purpose of making some disposition of said cause; that it was further expressly agreed between said Butler and Hood, that said Butler need not, in any event, leave Milwaukee for Mineral Point, before Thursday, the 18th day of said month of September, and not then, unless notified by said Hood to do so, and that if said Butler should be so notified, then, and in no other event, the said Hood and Butler would go together to Mineral Point, to dispose of said cause by trial or otherwise; that said Butler received no communication from said Hood, in the premises, after the said 13th day of September, until Sunday the 21st day of that month, when he received

a letter from said Hood, informing him that said cause was June Term, 1860. tried on the 18th day of said month, and expressing regret and surprise that a trial had been had without his knowl- ABLEman et al. edge, and a judgment entered up therein.

The bill further states that Volkert W. Roth was interested in said judgment; that he was the agent and brother of the said Nelson Roth; that he was cognizant of said agreement. between said Hood and Butler, and, in utter disregard thereof, went to Mineral Point and retained Samuel Crawford, Esq., to try said cause on the part of the plaintiff, and that on the said 18th day of September, the said Volkert being the only or principal witness for the plaintiff, and no attorney present on the part of the complainants, who were defendants therein, said action was tried in the absence of said defendants, and a judgment was entered against them in said action, for $5,019.38 in damages.

The bill further states, that said Volkert W. Roth, as the agent of said Nelson Roth, fraudulently procured said judg ment to be rendered against the complainants, and fraudulently prevented them from availing themselves of a complete defense to said action, without any fault or negligence on their part, or on the part of their attorneys; that immedi ately on learning that said cause had been tried, and judgment rendered therein, they prepared and forwarded to be filed, a motion for a new trial in said cause, founded upon an affidavit made by said Butler, setting forth the agreement between him and said Hood, but that the court which tried said action had adjourned for the term, before it was possible to file said motion, and that the same was not filed and could not have been, so as to obtain a new trial, according to the rules and practice of the court.

The bill also states that executions have issued upon said judgment to the defendant Conover, as sheriff of Milwaukee county, and to the defendant Donovan, as sheriff of Sauk county, and prays for an injunction to restrain the collection of said judgment, and for such other or further relief as the case may require. The bill was verified by the affidavit of one of the complainants, and contained a release of errors in the proceedings at law.

V.

ROTH et al.