1. The law governing this case, as. to the rights of the defendants in error as laborers, was decided when it was before us at the last term. The affidavits set forth the grounds upon which the plaintiffs in fi. fa. below relied to establish their liens on the fund in the sheriff’s hands. Upon the trial of the traverse made by the counter affidavit, the testimony did not' materially vary the facts upon which this court made its ruling on the rights of the *67■parties, and a majority of the bench still ádhering to that judgment, settles the question in favor of the defendants in^error. My own mind has undergone no change, and ■whilst I admit that the defendants in error are equally entitled to their pay with such as are classified laborers, still; they do not, in my opinion, fall within such classification, ■and were not so considered by the legislature.
The judgment of the court below is further excepted to as erroneous,-because-on the trial there w,as no proof of a demand by the defendants in error on the debtor. ■•
The affidavits of these lien creditors Set out the'fact- that they had made such demand, and. the counter affidavit did not traverse or deny it. Such being the fact there was no issue formed, none to be tried, and no further proof necessary. 58 Ga., 411.
- The counter-affidavit contested the existence of the liens, and denied that, under the facts-alleged, any lien existed in law by which the said parties .were entitled to the said fund over the contestants.
2.' Under this general exception it is insisted further by counsel for plaintiffs in error, that these laborers liens cannot be enforced against bona fide mortgage creditors any more than they, could against bona fide purchasers without notice.
That they cannot be enforced against bona -fide purchasers, is especially declared in §1976 of the Code. But in §1974 it is provided that laborers shall have a.general lien upon'the property of th,eir employers superior to. all .other liens, except , for taxes and such ¡ others as are declared by law to- be .superior to them ; and mortgagesiare -not so declared. •
Whilst this particular question has not been before this court since'the'act of 1873,- fixing the liens of laborers, it was before-it under the constitution of- 1868, and the acf of 18(39 providing -for these liens, and the ruling of the court will be found in the case of Stonewall Jackson Building and Loan Association vs. McGruder, 43 Ga., 9. Under the act of 1869 laborers liens did not have the priority *68which is given them under the act of 1873, and yet it was held in the case referred to that as to dignity they were superior to judgments, mortgages, etc., which had to yield to the laborer and mechanic, even though such judgments and mortgages might be of older date.
If, then, such priority was given to these liens under the act of 1869, there can be no question but that under the act of 1873 they are of higher dignity than mortgages, even though they may have been made to bona fide creditors.
Judgment affirmed.