Imágenes de páginas

State, although they bave neither possession | tersed, and that of the Special Term, setting asido nor control of the property, and none of it is and vacating the assessinent, should be affirmed, in this State, the trust estate must pay tribute with costs. to us. We tbink pot.

All concur, except Earl, J., absenta The order of the General Term should be re


SCHUYLKILL RIVER EAST SIDE R. , judgment in favor of plaintiff in a proceeding CO., Plff. in Err.,

io recover damages for the taking by defend0.

ant for railroad purposes of a portion of prope Jobn J. KERSEY.

erty in wbich he had a leasehold interest.

Affirmed. (....Pa.....)

The case sufficiently appears in the opinion.

Messrs. Thad. L. Vanderslice and 1. In proceedings to assess damages Lewis C. Cassidy, for plaintiff in error: for the taking of property for railroad

The question for the jury was, What was the purposes, whatever injuriously atfects the own- value of the leasehold interest before the rail. er's adjoining property as the direct and necessary road atfected it at all? result of the location of the road may be consid- It was worth to plaintiff the same sum it was

ered by the jury in making their assessment. worth for sale and transfer, and the mode of 2. Where the location of a railroad ascertaining the sum is by the testimony of

across property leased as a coal yard witnesses upon its market value. makes necessary new appliances for the continua. Pennsylvania R. Co. v. Eby, 107 Pa. 166. tion of the coal business and increases the cost of A tenant's damage is to be measured by the raising and storing the coal as well as the same rule that is applied to the owner of the breakage and waste in handling it, the additional fee-What was his estate worth before and expense and loss, together with the cost of the after? Wbat injury was done to his property? new appliances, may properly be received in

Philadelphia & R. R.Co. v. Getz, 113 Pa. 214. evidence in a proceeding by the lessee to recover damages for such location, not as specific items the matters stated, the judgment of well-in

The price which, upon full consideration of of claim, but as affecting the market value of formed and reasonable men will approve, may the leasehold.

be regarded as the market value. (March 17, 1890.)

Pittsburgh & W. R.Co. v. Patterson, 107 Pa.

464. RROR to the Court of Common Pleas, No. The jurors are to value the injury to the prop

County to review a'erty, without reference to the person of the

ERROR Philadelphia

NOTE.-Compensation for land taken for railroad It is proper to consider, in estimating the damages purposes.

for a rigbt of way for a railway, the manner in In condemnation proceedings the land owner is which the road cuts the land, the excavations and entitled to full compensation for the land actually embankments, and the exposure of the property taken, and for such damages to the residue as are to particular injuries from the proximity of the equivalent to the diminution in value, general bene- road. Fremont, E. & M. V. R. Co. v. Meeker (Neb.) fits uot considered. Fremont, E. & M. V. R. Co. v. 44 N. W. Rep. 79. Meeker (Neb.) 44 N. W. Rep. 79.

The compensation is the difference between the The damages include what is necessary to make value of the land as it existed before, and of the regood all that results, directly or indirectly, to the maining portion after, the construction of the railinjury of the owners in the whole premises and in- road. Re Scott, 6 Manitoba L. Rep. 193. terests affected, and not merely the strip taken. It is the difference between its value before and Grand Rapids, L. & D. R. Co. v. Chesebro (Mich.) after the construction of the road, without taking 42 N. W. Rep. 66.

into consideration any of the benefits to be derived In determining the question of damages, advan- from the railroad. Wichita & W. R. Co. v. Kuhn, tages and disarivantages from the appropriation are 38 Kan. 104; Baltimore & P. R. Co.v. Springer (Pa.) considered, and are to be estimated upon the land 11 Cent. Rep. 685; Hartman v. Reading & P. R. Co. as a whole. Baltimore & P. R. Co. v. Springer (Pa.) (Pa.) 12 Cent. Rep. 447; Chicago, B. & N. R. Co. v. 11 Cent, Rep. 685.

Вот an, 11 West. Rep. 598, 122 Ill. 595; Concordia Where the tract taken is part of a larger connected Cem. Asso. v. Minnesota & N. W. R. Co. 10 West. body of land, the owner may recover for the injury Rep. 573, 121 III. 199. done to the tract as a whole, and is not restricted In determining the damages to a farm, caused by simply to the part described. Fayetteville & L. R. the construction of a railroad, it is proper to take R. Co. v. Hunt, 51 Ark, 830.

into consideration every element of damage that The full value of land actually condemned for a might be reasonably anticipated before the road is railroad must be allowed as damages, although the built, and what really does exist and is apparent company does not acquire the fee. Ibid.

after the road is constructed. This includes the inJust compensation for land taken consists in convenience of crossing, the raising of embank. making the owner good, by an equivalent in money, ments, the digging of ditches, pools of stagnant for the loss he actually sustains in the value of his water, and the obstruction to surface water by property by being deprived of a portion of it. It throwing it into the channels or by damming it up. includes, not only the value of the land taken, but | Wichita & W. R. Co. v. Kuhn, supra; Weyer v. Chi. also the diminution in the value of that from which cago, W. & N. R. Co. 68 Wis. 180. See, generally, San it is severed. Lafin v. Chicago, W. & N. R. Co.33 Diego L. & T. Co. v. Neale, 3 L. R. A, 83, 78 Cal. 63. Fed. Rep. 415. See Esch v. Chicago, M. & St. P. R. Co.72 Wis. 229. 7 L. R. A.


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owner, or the actual state of bis business; and property into two parts. The sheds, ruds and in doing ibat the only safe rule is to inquire, other appliances indispensable to the business What would the property unaffected by tbe for which the property was leased were parobstruction bave sold for at the time the injury tially destroyed by this addition of the Comwas committed? What would it bave sold for pany, and the construction of new ones adaptas affected by the injury? The difference is ed to the changed condition became necessary the uue measure of compensation.

in order to continue the business. A bridge chuylkill Nav. Co. v. Thoburn, 7 Serg. &R. with a single span of sixty-eight feet and an 411.

elevation of lwenty one feet above the railroad Plaintiff should not have been permitted to tracks, and a derrick, sheds and runs of a corprove his loss by breakage of coal, or the in- responding beigbt were required. The Comcreased cost of bandling it to the end of his pany recognized the necessity for these appliterm, as specific items of damage.

ances as the direct consequence of the location Reading & P. R. Co. v. Balthaser, 119 Pa. of its railroad, and admits that it promised the 482.

plaintiff to construct them, but excuses its nonMr. Joseph L. Caven, for defendant in performance on the ground that it could not

agree with him as to the details of the work. If by reason of the taking of the property, or In other words, the plaintiff wanted better its desii uction, the plaintiff was specially in- structures than the Company was willing to jured, be is entitled to compensation for such build, or considered necessary, in view of the in jury.

probable duration of bis leasehold. It was conTennsylvania R. Co. v. Eby, 107 Pa. 106; templated by the parties that the business Pliladelphia & R. R. Co. v. Getz, 113 Pa. 214. should be continued by the plaintiff, and that

The plaintiff's damages will be the value to he should have as far as practicable the same him of the leasebold for the uses to wbich he facilities for carrying it on that he had before is to devote it, viz., a coal wbarf and yard. enjoyed. It was the only business which his

Chicago, E. & L. S. R. Co. v. Catholic Bishop, lease allowed him to establish there, and if he 119 III. 525.

abandoned it his leasehold was worthless, beWhere one is compelled by the entry of a cause he could not sublet or sell it without the railroad to remove and re establish the same consent of bis lessor. The Company failing to brisivess elsew here, be must be allowed the ex- provide the facilities it conceded be was entipense of such removal and re establishment. iled to and had promised he should have, he

Philadel hia & R. R. Co. v. Getz and Penn- constructed such appliances as were necessary sylvania R. Co. v. Eby, supra; Chicago, M. & for the continuance of the business as it existSt. P. R. Co. v. Ilock, 118 11l. 587; St. Louis, V. ed before the location of the railroad. The in& T. II. R. 60, v. Carps, 67 III. 607.

creased height of the structures increased the Plaintiff must be allowed the reasonable and cost of raising the coal, and the breakage and pecessary expense for putting his property in waste in handling it. This additional expense the same condition as it was before.

and loss, tigether with the cost of the new apPrice v. Milicaukce & St. P. R. (0.27 Wis. 98; pliances, be was allowed to show and prove on Chase v. Worcester, 108 Mass. 60; Walter v. the trial of this issue. The Company objected Post, 4 Abb. Pr. 382.

to this evidence and now contends that the Evidence to show the increased cost of stor- court erred in admitting it. ing and handling coal, and the increased break- It is well settled that the proper measure of age and wastage to the end of the term, neces- damages is the depreciation in the market value sarily resulting from these new appliances, was of the property, caused by the location and admissible.

construction of the railroad. But the elements Pennsylvania R. Co. v. Eby, supra; Pitts to be considered in the ascertainment of this buryh Junction R. Co. v. McCutcheon (Pa.) 5 depreciation are as varied as the properties af. Cent. Rep. 759; Pittsburgh, V. & C. R. Co. v. fected and the uses to which they were applied. Vance, 115 Pu. 325; Tucker v. Massachusetts A specification of all these elements is impossi. Cent. R. Co. 118 Mass, 516.

ble, because they cannot be anticipated, and

many of them remain to be developed in the McCollum, J., delivered the opinion of the course of the litigation consequent upon the

taking of property by eminent domain. In the No complaint is made by the defendant Com- ordinary case of the appropriation of land for pany of the instructions to the jury on the railroad purposes the opinions of witnesses who question of damagi's, and our inquiry is limited are conversant with the property and the gen. to alleged error in the admission of evidence. eral selling price of lands in the vicinity are

The plaintiff was the lessee of a wharf prop- received on the question of its value upaffected erly on the Schuylkill River in Pbiladelpbia, by the road and its value as affected by it. But extending from ide river to Twenty-Fourth this is not exclusive of other, and in some cases, Street. It was leased to him as a coal wharf better, methods of proof. It may be stated as and yard. Upon it be carried on the business a general principle, applicable to cases of this of receiving, storing and delivering coal for sort, that whatever injuriously affects the propother parties, and of receiving, storing and sell- erty, as the direct and necessary result of the ing coal and sand on his own account. The location of the road upon it, may be considered appliances used in the business and necessary in the assessment of damages. to carry it on belonged to him.

In this case the estate of the plaintiff was In January, 1856, the defendant Company limited to a particular use. Its enjoyment in epiered, and located its road upon the demised accordance with the terms of its creation reprejuises, appropriating for tbat purpose a strip quired that the appliances wbich had been renof land sixty feet in width, and dividing the dered useless by the entry of the defendant


Company should be reconstructed at an eleva- which would be to prevent a suspension of the tion wbich increased the cost of raising and rent during the time of rebuilding. storing the coal, and increased the breakage

Truly yours, and waste in handling it. We think these

Morton P. Henry, matters were properly received in evidence as Attorney for the Royal Insurance Company. descriptive of the injury inflicted and the bur. April 17, 1888. den imposed on the property by the occupation of it for railroad purposes, and that tbey were The other material facts sufficiently appear for the consideration of the jury, not as specific in the opinion. items of claim, but as affecting market value. Mr. Morton P. Henry, for plaintiff in The specifications of error are dismissed, and error:

Fire insurance is a contract of indemnity. The judgment is affirmed.

1 Phillips, Ins. $ 4; Porter, lys. p. 6; Mar. Paxson, Ch. J., not sitting.

shall, Ins. 1; Wood, Fire Ips, note 2, p. 4; Hull V. Nashville & C. R. Co. 80 U. S. 13 Wall. 367 (20 L. ed. 594); Darrell v. Tibbitts, L. R. 5

Q. B. Div. 560; Friemansdorf v. Watertown ROYAL INSURANCE CO., of Liverpool, Ins. Co. 1 Fed. Rep. 68. Piff. in Err.,

After a loss has occurred to the subject of

insurance the insured not only cannot by any Marietta HELLER.

act of his own increase the liability of his in

surer or indemnifier, but he must do everything (......Pa.......)

in his power to mitigate and reduce the loss.

Wood, Fire Ins. p. 776; Atlantic Ins. Co. v. 1. An entry by a landlord to rebuild a Storrono, 5 Paige, 285; Niagara F. Ins. Co. v. burned building, under an agreement with the Fidelity Title & Trust Co. 123 Pa. 516; 1rs. tenant that the latter shall continue to pay rent Co. of N. A. v. Fidelity Title & Trust Co. 2 L. during the time of rebuilding, in consideration R. A. 586, 123 Pa. 523; Carstairs v. Mechanics of the landlord's promise to grant a new lease & T. Ins. Co. 18 Fed. Rep. 473. of the improved property on more favorable

The liability of the insurer, like that of a terms, will relieve an insurance company of its contract to indemnify the tenant for any after the obligation has been entered into.

surely, cannot be enlarged without his consent loss accruing to him by reason of having to pay rent for the insured building during such

Crawley v. Com. 123 Pa. 275. time as it should be untenantable by reason of

If the landlord enters on the premises for the fire.

purpose of rebuilding, either with or without 2. No stipulation between third per.

the consent of his tenant, the liability of the sons can continue upon one an obligation from tenant for rent ceases. wbich the law relieves bim.

Magaw v. Lambert, 3 Pa. 444; Horreler v. 8. An insurance company's letter stat. Fleming, 91 Pa. 322; Er parte l'itale, 47 L. T.

ing that it could not, by reason of the landlord N. S. 450; Platt, Covenants, 197. entering for the purpose of rebuilding, be dis

When Mrs. Heller agreed to continue to charged from liability on a policy insuring a ten- pay the rent it was a voluntary assumption of ant against liability for rent in case the leased a continuing liability for rent after the time buildings are burned, and that such defense when the law relieved her, and the company would not be raised, will not estop the company thereby became exonerated in full from further from asserting its discharge from further liabil- loss under their policy. ity by rcason of an entry by the landlord under Darrell v. Tibbitts, L. R. 5 Q. B. Div. 560; an agreement with the tenant to continue the Castellain v. Preston, L. R. 11 Q. B. Div. 389; payment of rent.

Hriemansdorf v. Watertown Ins. Co. supra.

Mr. M. Hampton Todd, for defendant in (March 10, 1890.)

No one was discharged from liability, no in. RROR to the Court of Common Pleas, No. E 4, of Philadelphia County to review a judg: plaintiff agreed with her •landiord that he

jury of any kind done to the defendant. The ment in favor of plaintiff in an action upon a should rebuild, and that the entry for that purpolicy insuring plaintiff against liability to pay rent for certain leased property in case the pose should not be construed as an eviction or buildings thereon were destroyed by fire. Re

surrender. tersed.

Niagara F. Ins. Co. v. Fidelity Title & Trust During the negotiations for a settlement of

Co. 123 Pa. 516. the rights of the parties and permission to bave the buildings rebuilt, the attorney of the insur

Mitchell, J., delivered the opinion of the

court: ance company wrote the following letter:

The facts in this case as they appear in the M. Hampton Todd, Esq., Attorney for Mrs. affidavit of defense and the plaintill's stateHeller.

ment are practically undisputed, and they esDear Sir:—The Royal Insurance Company tablish a complete defense. Defendant by its could not be discharged from liability on Mrs. policy agreed to indemnify plaintiff for any Heller's policy, by reason of the landlord en loss accruing to ber by reason of baving to pay tering for the purpose of rebuilding, nor will rent for the (therein) described building sich such a defense be raised.

time or times as the building may be untenantBut they decline to be parties to any agree-able by reason of fire or tires occurring during ment that the landlord shall be permitied with the continuance of this policy.” A fire occurred their consent to rebuild, the only effect of l in January, 1888, and the landlord entered to


rebuild, in July. That as a legal consequence | parting from this plain course except the Penn. would have suspended the payment of rent. sylvania Company, which, if the scheme bad It was a rescission pro tanto of ihe lease. Ma succeeded, would have transferred its own gaw v. Lambert, 3 Pa. 444; Hoveler v. Fleming, proper loss to the defendant. But when the 91 Pa. 322.

parties underlook to vary the defendant's Defendant was liable under its policy for the contract liability from that which the law im rent from January to July, and that amount it posed, their action was ineffective for such paid. But the plaintiff and her laudlord en purpose, and as to the defendant totally void. tered into an agreement by which tbe former Reference was made during the argument to agreed to continue to pay rent during the re- the correspondence and a claim suggested building of the store, and in consideration that tbe present defense had been waived. But therefor the latter agreed to rebuild with cer- such a view is uptenable. The meaning of the tain improvements and to give a new lease on letter of defendant's counsel, dated April 17, more favorable terms. Tois agreement dis- 1888, is entirely clear. The defense which it charged the defendant. The payment of rent says will not be raised is that defendant will under it by plaintiff was a voluntary under- be " discharged from liability by reason of the taking, not a legal obligation under the first landlord entering for the purpose of rebuildlease, against whicb alone the policy undertook ing.” Of course not. The fire had taken place to indemnify her. It is set out in the pleadings in the preceding January, and nearly three that the landlord was insured as to bis rent in months' rent was due at the date of the letter. the Pennsylvania Fire Insurance Company, From liability for this rent and such other as and that that Company, asserting a right of should accrue up to the entry of the landlord, subrogation to the landlord's claim for rent such entry would not be a discharge, and the agairst the tenant, procured the landlord not to letter says that such a defense will not be re-enter until the plaintiff made the agreement raised. But then, to make certain that its in question, and that by that agreement it was meaning is not more than this, it goes on to expressly stipulated that the rights and liabili- say explicitly that defendant will not consent ties as to rent, and as to claims under their to anything which will vary the legal effect of respective insurance policies, should not be af- the landlord's entry, to wit, the suspension of fected. But these facts are entirely immate the rent during the rebuilding. There is here rial. If true, they showed a fraudulent at- no waiver of any of defendant's rights. tempt on part of the plaintiff, the landlord and Judgment reversed, and procedeudo awarded. the Pennsylvania Fire Insurance Company to Clark, J., not sitting. shift a burden which belonged on them to the defendant. But even if there was no such fraudulent purpose, the effect of the agreement was to continue upon the defendant an obligation from which the law relieved it, and do Jacob M. DUNCAN, Impleaded, etc., Plf. stipulation between the other parties without

in Err., its consent could accomplish such a result,

It is said that the hardship of plaintiff's situation forced ber to make the agreement,

Stephen FLANAGAN. and that without it the landlord would not have re-entered, and the defendant would then

(....Pa.....) have been liable for an entire year's rent. Perbaps so, perhaps not. What the landlord would In a suit by a judgment debtor against have done there are no means of ascertaining,

one jointly liable with him on the demand but what it was his interest to do is clear for which the judgment was recovered, but who enough. lle might have lain by and collected during the pendency of the action had been dishis rent from plaintiff till the end of ber lease, charged in bankruptcy, for contribution towards but then he would have had to lose rent while payment of the judgment, an affidavit of defense be rebuilt. Or be might have rebuilt during which impugns the good faith of plaintiff by sether lease, and looked io his insurance for in

ting out that, defendant having been notified demnity while the rent was suspended by the

that the former suit had been abandoned, his corebuilding. It was manifestly bis interest,

defendant, the present plaintiff, had the proceed

ings renewed and carried to judgment without therefore, to enter and rebuild during the run.

notifying the present defendant and thereby prening of plaintiff's lease and bis own policy in

vented him from pleading bis discbarge in bankthe Pennsylvania Company. He had nothing

ruptcy, and that such co-lefendant, although asto gain and something to lose by delay. The suming to conduct the defense for the beneut of bardship in plaintiff's situation was in having all parties concerned, and, knowing of such an ipsuflicient insurance. She was bound to discharge, neglected to set it up as a defense, is pay rent for three years and only uudemuitied sufliciente for one.

It was her interest, therefore, to have the rebuilding done as soon as possible. The

March 24, 1890.) honest and proper course for all parties would

of No. time. The plaintiff would then bave paid 2 rent until the rebuilding commenced, and judgment in favor of plaintiff for want of a sufwould have been indemnified by the defendant. ficient affidavit of defense in an action against The rent would bave been suspended during the rebuilding, and the landlord would bave NOTE.-"He wbo comes into equity must come been indemnified by the Pennsylvania Com- with clean hands." See note to Medford v. Levy (W. pany. No one had anytbing to gain by de-Va.) 2 L. R. A. 868.


have been to rebuild at the earliest convenient ERROR Philadelphia County to review



his joint debtor for contribution towards pay- him, unless he avails himself of the proceedment of the judgment recovered on the debt. ings in bankruptcy. Reversed.

Palmer v. Merrill, 57 Me. 26; Re Leibenstein, On September 20, 1872, Duncan and Flana- 4 Chic. Leg. News, 309. gan and others entered into a contract by which they agreed to procure and ship a cargo of beef Green, J., delivered the opinion of the fro Galveston, Texas, to Philadelphia, on court: joint account. The steamer Francis Wright The liability upon which the judgment in was chartered for the adventure. In 1874 suit the State of New York was recovered against was brought in New York on the charter-party the plaintiff and the defendant jointly grew by the owners of the Francis Wright and a directly out of the original article of agreeinent judgment recovered in favor of plaintiffs. made on September 20, 1872. The plaintiff, Flanagan paid this judgment and brought suit the defendant and several others were parties to recover contribution from his co-defend to that agreement, and in it they all agreed that ants.

the cbarter of the steamship Francis Wright Further facts appear in the opinion. was accepted and was “for the account and

Messrs. A. A. Hirst and J. Howard risk of all concerned in the joint venture." Gendell for plaintiff in error.

The owners of the Francis Wright brought the Mr. George P. Rich, for defendant in action in New York in 1874 against the plain

tisl, the defendant and some of the other parThis action will lie to recover from Duncan ties to the agreement, claiming the sum of his proportion of the joint expenses.

$6,966.86 as a balance due for the cbarter and k’utz v. Dreibelbis, 126 Pa. 335; Brubacker v. hire of the vessel during the joint venture menRobinson, 3 Penr. & W. 295; Galbreath v. tioned in the agreement. For some Joore, 2 Watts, x6; Wright v. Cumpsy, 41 Pa. plained reason the case seems to have slumbered 102; Finlay v. Stewart, 56 Pa. 183; Meason v. for nine years and it was not until 1883 that the Kaine, 63 Pa. 335.

action was tried and resulted in a verdict and The adventurers are joint debtors, who, as judgment for the plaintiffs, and against four of between themselves and their creditors, were the defendants, including the plaintiff and deeach liable for the whole debt; but, as between feudant in the present suit. The liability upthemselves, each is liable for his proportion on which that action was founded, and for only, and as to the rest is surety for the others. which the judgment was recovered, arose exAckerman's App. 106 Pa. 1.

clusively from the agreement of 1872. It was The doctrine of subrogation does not depend therefore in existence at the time Duncan's proon privity, nor is it confined to cases of strict ceeding in bankruptcy was commenced and at suretysbip; it is a mode which equity adopts to the time of the adjudication in 1878, and the compel the ultimate discharge of the debt by discharge in 1881. We know of no reason him who, in good conscience, ought to pay it; why that liability could not have been proved and to relieve him whom none but the creditor against Duncan. It was at least a claim for could ask to pay.

unliquidated damages arising out of a contract McCormick v. Irwin, 35 Pa. 111; Bender v. which is provided for by section 5067 of the George, 92 Pa. 36; Ackerman's App. supra. Bankrupt Act. In the affidavit of defense it

Even if the judgment has been marked 'sat- is alleged that the defendant was informed that isfied” on the record, equity will keep the debt the New York suit had been abandoned, and alive, and the surety paying is entitled to be that nearly nine years after the suit was comsubrogated as against all but intervening cred- menced a supplemental complaint was filed to itors.

which Flanagan made answer but never notiWright v. Grover, 82 Pa. 80; Bailey v. Brown- tied Duncan of it, and that be, Duncan, had field, 20 Pa. 41.

no knowledge of it; and also that the suit was If a demand is not provable, it is not barred tried practically on the supplemental complaint by the certificate of discharge in bankruptcy. and answer. The affidavit also alleges that Murray v. De Rottenham, 6 Johns. Ch. 52. Flanagab was represented in that suit by BeneAs to demands not barred, see

dict, Tast & Benedict, New York lawyers, who Large v. Bosler, 3 Pa L. J. 246; Kingsley v. undertook to appear for all the defendants, and Prentiss, 6 Pa. L. J. 479; United States v. The who were aware that Duncan bad been adRob Roy, 13 Nat. Bankr. Reg. 235; Loring v. judged a bankrupt, tbat subsequently to his kendall, 1 Gray, 305; Forler v. Kendall, 44 discharge Flanagan and the lawyers ignored Me. 418; Eastman v. Hibbard, 13 Nat. Bankr. him and undertook the conduct of the case, Reg. 360; Pike v. McDonald, 32 Me. 418; Leigh- and that it was the duty of the lawyers to have ton v. Atkins, 35 Me. 118.

pleaded Duncan's discharge while assuming to The right to plead his discharge in bar of an act for him. The affidavit further charges action pending against him is exclusively the Flanagan with baving renewed the proceedings bankrupt's personal right. If he fails to avail in 1883 without notice to, or knowledge by, himself of it, judgment may be rendered against Duncan, and without having given him an ophim.

portunity to plead bis discharge. Januarring v. Rouns, 35 Tex. 171; Park v. As Flanagan now seeks to recover in this Casey, 35 Tex. 536; Fellows v. Hall, 3 McLean, action against Duncan upon the equitable prin487; Etercard v. Green, 11 Paige, 535; Freeman ciple of contribution, it is necessary that his v. Warren, 3 Barb. Ch. 635; Seymour v. Brown. bands should be clean. His good faith is iming, 17 Ohio, 362; Taylor v. Renn, 8 Chic. Leg. pugned by the facts alleged in the aftidavits of News, 410; Horner v. Spelman, 78 Ill. 206. defense which we must assume to be true; and

Notwithstanding the defendant's bankrupt- as those facts tend to show that he acted in bad cy, a valid judgment can be rendered against faith in so conducting the defense in the New

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