rebuild, in July. That as a legal consequence | parting from this plain course except the Pennwould have suspended the payment of rent. It was a rescission pro tanto of the lease. Ma gaw v. Lambert, 3 Pa. 444; Hoveler v. Fleming, 91 Pa. 322. sylvania Company, which, if the scheme had succeeded, would have transferred its own proper loss to the defendant. But when the parties undertook to vary the defendant's contract liability from that which the law im posed, their action was ineffective for such purpose, and as to the defendant totally void. Reference was made during the argument to the correspondence and a claim suggested that the present defense had been waived. But such a view is untenable. The meaning of the letter of defendant's counsel, dated April 17, 1888, is entirely clear. The defense which it says will not be raised is that defendant will be "discharged from liability by reason of the landlord entering for the purpose of rebuilding." Of course not. The fire had taken place in the preceding January, and nearly three months' rent was due at the date of the letter. From liability for this rent and such other as should accrue up to the entry of the landlord, such entry would not be a discharge, and the letter says that such a defense will not be raised. But then, to make certain that its meaning is not more than this, it goes on to say explicitly that defendant will not consent to anything which will vary the legal effect of the landlord's entry, to wit, the suspension of the rent during the rebuilding. There is here no waiver of any of defendant's rights. Judgment reversed, and procedendo awarded. Clark, J., not sitting. Defendant was liable under its policy for the rent from January to July, and that amount it paid. But the plaintiff and her landlord entered into an agreement by which the former agreed to continue to pay rent during the rebuilding of the store, and in consideration therefor the latter agreed to rebuild with certain improvements and to give a new lease on more favorable terms. This agreement discharged the defendant. The payment of rent under it by plaintiff was a voluntary undertaking, not a legal obligation under the first lease, against which alone the policy undertook to indemnify her. It is set out in the pleadings that the landlord was insured as to his rent in the Pennsylvania Fire Insurance Company, and that that Company, asserting a right of subrogation to the landlord's claim for rent against the tenant, procured the landlord not to re-enter until the plaintiff made the agreement in question, and that by that agreement it was expressly stipulated that the rights and liabilities as to rent, and as to claims under their respective insurance policies, should not be affected. But these facts are entirely immaterial. If true, they showed a fraudulent attempt on part of the plaintiff, the landlord and the Pennsylvania Fire Insurance Company to 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 no Jacob M. DUNCAN,_Impleaded, etc., Piff. stipulation between the other parties without its consent could accomplish such a result. It is said that the hardship of plaintiff's situation forced her to make the agreement, and that without it the landlord would not have re-entered, and the defendant would then have been liable for an entire year's rent. Perhaps so, perhaps not. What the landlord would have done there are no means of ascertaining, but what it was his interest to do is clear enough. He might have lain by and collected his rent from plaintiff till the end of her lease, but then he would have had to lose rent while he rebuilt. Or he might have rebuilt during her lease, and looked to his insurance for indemnity while the rent was suspended by the rebuilding. It was manifestly his interest, therefore, to enter and rebuild during the running of plaintiff's lease and his own policy in the Pennsylvania Company. He had nothing to gain and something to lose by delay. The hardship in plaintiff's situation was in having an insufficient insurance. She was bound to pay rent for three years and only indemnified for one. It was her interest, therefore, to have the rebuilding done as soon as possible. The honest and proper course for all parties would in Err., v. Stephen FLANAGAN. (....Pa.....) In a suit by a judgment debtor against one jointly liable with him on the demand for which the judgment was recovered, but who during the pendency of the action had been discharged in bankruptcy, for contribution towards payment of the judgment, an affidavit of defense which impugns the good faith of plaintiff by setting out that, defendant having been notified that the former suit had been abandoned, his codefendant, the present plaintiff, had the proceedings renewed and carried to judgment without notifying the present defendant and thereby prevented him from pleading his discharge in bankruptcy, and that such co-defendant, although assuming to conduct the defense for the bene.it of all parties concerned, and, knowing of such discharge, neglected to set it up as a defense, is sufficient. (March 24, 1890.) RROR to the Court of Common Pleas, No. judgment in favor of plaintiff for want of a sufficient affidavit of defense in an action against have been to rebuild at the earliest convenient of Philadelphia County to review a time. The plaintiff would then have paid rent until the rebuilding commenced, and would have been indemnified by the defendant. The rent would have been suspended during the rebuilding, and the landlord would have been indemnified by the Pennsylvania Company. No one had anything to gain by de NOTE.-"He who comes into equity must come with clean hands." See note to Medford v. Levy (W. Va.) 2 L. R. A. 368. his joint debtor for contribution towards payment of the judgment recovered on the debt. Reversed. On September 20, 1872, Duncan and Flanagan and others entered into a contract by which they agreed to procure and ship a cargo of beef from Galveston, Texas, to Philadelphia, on joint account. The steamer Francis Wright was chartered for the adventure. In 1874 suit was brought in New York on the charter-party by the owners of the Francis Wright and a judgment recovered in favor of plaintiffs. Flanagan paid this judgment and brought suit to recover contribution from his co-defend ants. Further facts appear in the opinion. Mr. George P. Rich, for defendant in error: This action will lie to recover from Duncan his proportion of the joint expenses. Kutz v. Dreibelbis, 126 Pa. 335; Brubacker v. Robinson, 3 Penr. & W. 295; Galbreath v. Moore, 2 Watts, 86; Wright v. Cumpsy, 41 Pa. 102; Finlay v. Stewart, 56 Pa. 183; Meason v. Kaine, 63 Pa. 335. him, unless he avails himself of the proceedings in bankruptcy. Palmer v. Merrill, 57 Me. 26; Re Leibenstein, 4 Chic. Leg. News, 309. Green, J., delivered the opinion of the court: The liability upon which the judgment in the State of New York was recovered against the plaintiff and the defendant jointly grew directly out of the original article of agreement made on September 20, 1872. The plaintiff, the defendant and several others were parties to that agreement, and in it they all agreed that the charter of the steamship Francis Wright was accepted and was "for the account and risk of all concerned in the joint venture." The owners of the Francis Wright brought the action in New York in 1874 against the plaintiff, the defendant and some of the other par ties to the agreement, claiming the sum of $6,966.86 as a balance due for the charter and hire of the vessel during the joint venture mentioned in the agreement. For some unexplained reason the case seems to have slumbered for nine years and it was not until 1883 that the action was tried and resulted in a verdict and judgment for the plaintiffs, and against four of the defendants, including the plaintiff and defendant in the present suit. The liability upon which that action was founded, and for which the judgment was recovered, arose exclusively from the agreement of 1872. It was therefore in existence at the time Duncan's proceeding in bankruptcy was commenced and at the time of the adjudication in 1878, and the discharge in 1881. We know of no reason why that liability could not have been proved against Duncan. It was at least a claim for 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. The adventurers are joint debtors, who, as between themselves and their creditors, were each liable for the whole debt; but, as between themselves, each is liable for his proportion only, and as to the rest is surety for the others. Ackerman's App. 106 Pa. 1. The doctrine of subrogation does not depend on privity, nor is it confined to cases of strict suretyship; it is a mode which equity adopts to compel the ultimate discharge of the debt by him who, in good conscience, ought to pay it; and to relieve him whom none but the creditor could ask to pay. 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-fied Duncan of it, and that he, Duncan, had field, 20 Pa. 41. If a demand is not provable, it is not barred The right to plead his discharge in bar of an action pending against him is exclusively the bankrupt's personal right. If he fails to avail himself of it, judgment may be rendered against him. no knowledge of it; and also that the suit was tried practically on the supplemental complaint and answer. The affidavit also alleges that Flanagan was represented in that suit by Benedict, Taft & Benedict, New York lawyers, who undertook to appear for all the defendants, and who were aware that Duncan had been adjudged a bankrupt, that subsequently to his discharge Flanagan and the lawyers ignored him and undertook the conduct of the case, and that it was the duty of the lawyers to have pleaded Duncan's discharge while assuming to act for him. The affidavit further charges Flanagan with having renewed the proceedings in 1883 without notice to, or knowledge by, Duncan, and without having given him an opportunity to plead his discharge. Manwarring v. Kouns, 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; Steward v. Green, 11 Paige, 535; Freemanciple of contribution, it is necessary that his v. Warren, 3 Barb. Ch. 635; Seymour v. Browning, 17 Ohio, 362; Taylor v. Renn, 8 Chic. Leg. News, 410; Horner v. Spelman, 78 Ill. 206. Notwithstanding the defendant's bankrupt cy, a valid judgment can be rendered against hands should be clean. His good faith is impugned by the facts alleged in the affidavits of defense which we must assume to be true; and as those facts tend to show that he acted in bad faith in so conducting the defense in the New York suit that a judgment was recovered against Duncan, which might have been prevented by pleading the discharge of the latter, and by giving Duncan no opportunity to plead the discharge himself, he is certainly not entitled to judgment in this action for want of a sufficient affidavit of defense. The defendant has a right to be heard by a jury upon his allegations of fact. Whether the defendant can plead his discharge against the present claim of the plaintiff is a question which can be determined on the trial after all the facts on both sides are brought out. Judgment reversed, and record remitted for further proceedings. KANSAS SUPREME COURT. ATCHISON, TOPEKA & SANTA FÉ erated, and now owns and operates, a railroad R. CO., Piff. in Err., v. known as the Atchison, Topeka & Santa Fé Railroad Company, and as such corporation Joel COCHRAN, Admr., etc., of John M. and railroad company was then, and is now, Gibson, Deceased. (....Kan.....) *1. A stockholder of a railroad company is not liable for the negligence of the officeis, agents or employés of the company in the operation of its road. 2. Under the laws of Kansas, a railroad company has the lawful right to purchase and hold stock of any other railroad company, the line of whose railroad, constructed or being constructed, connects with its own. 8. Where the rights and powers of a railroad company are those of a stockholder only, in a connecting railroad, the railroad company, on account of being a stockholder, is not liable for the negligence of the connecting railroad, 4. Where two connecting railroad companies use a station jointly, or hire one person to discharge the duties of ticket agent for both, and such person sells a ticket for carriage over one of the roads, the other company is not responsible for the road over which the ticket carries the passenger. (February 8, 1890.) RROR to the District Court for Johnson plaintiff in an action to recover damages for personal injuries resulting in death, and alleged to have been caused by the negligence of defendant's agents and servants. Reversed. Statement by Horton, Ch. J.: operating, and exclusively managing and controlling, the Southern Kansas Railroad Company, a corporation duly organized under the laws of the State of Kansas; that the Atchison, Topeka & Santa Fé Railroad Company was then, and still is, a common carrier of passengers for hire upon its trains into and through Douglas and Johnson Counties, Kan., and that the said Southern Kansas Railroad Company, so operated, managed and controlled by the said Atchison, Topeka & Santa Fé Railroad Company, was then, and still is, a common carrier of passengers for hire upon its trains of cars into and through Johnson County, Kan., and then run its trains of cars over and used defendant's tracks from Kansas City, Mo., to Holliday, Kan.; and that the Town or Village of Holliday was then a regular station and depot in Johnson County, Kan., of the said Atchison, Topeka & Santa Fé Railroad Company, on the main line of its said railroad; and that said Town or Village of Holliday and the City of Olathe, in Johnson County, Kan., were then regular stations or depots on the line of the Southern Kansas Railroad. "Plaintiff further states: On the 21st day of March, 1887, the plaintiff's intestate, John M. · Gibson, had ridden, as a passenger on a regular train cars pany, from Lawrence and Eudora, Kan.; to said station, Holliday, and that upon said day at Holliday, aforesaid, the said John M. Gib son, now deceased, purchased from said defendant Company's ticket agent at Holliday Depot, aforesaid, a ticket entitling him to be On the 31st day of May, 1887, Joel Cochran, transported on that day, as a passenger, thence administrator of the estate of John M. Gibson, to Olathe, Kan., by and upon a regular passendeceased, filed his petition in the District Court ger train of cars of-and then used by the deof Johnson County, Kan., against the Atchi-fendant in the name of-the said Southern son, Topeka & Santa Fé Railroad Company, alleging that "The said plaintiff herein complains of the said defendant herein for that, on the 30th day of May, 1887, he was duly for the said John M. Gibson, now deceased, to Kansas Railroad Company; and that in order get upon said regular passenger train of cars, trolled by said defendant Company, to be car so then being operated, managed and conappointed and qualified, and letters of administration of the estate of John M. Gibson, de- ried from Holliday to Olathe, aforesaid, it be ceased, were issued to him by the Probate came and was necessary for the said John M. Court of Johnson County, State of Kansas, as Gibson, now deceased, to walk across the inthe administrator of said estate. And the said terjacent railroad tracks belonging to said plaintiff further states that the said defendant defendant Company, and then being used by herein is now, and was at the date hereinafter said defendant Company and said Southern first mentioned, a railroad corporation, duly tive engines and passenger and freight trains Kansas Railroad Company with their locomoorganized under and by virtue of the laws of of cars,-there being no other way for said dethe State of Kansas, and then owned and opcedent to get to and upon said train,-and that *Head notes by HORTON, Ch. J. while the said decedent was in the act of walk ing across said interjacent railroad tracks, aforesaid, at the station, and upon the invitation of said defendant Company, and for the sole purpose of boarding the regular passenger train of cars of the Southern Kansas Railroad Company, as aforesaid, to be carried thence to Olathe, aforesaid, upon said train of cars, which was then at rest, about two or three tracks remote from the platform of the said defendant's depot or ticket office, which said Southern Kansas train of cars did not then come to, nor did it intend to then come to, the platform of said depot, and which train was then about ready to start for Olathe, aforesaid, and there then being no regular crossing across said interjacent tracks, and no person there to warn him of danger, the said defendant Company then and there, to wit, on the 21st day of March, 1887, at Holliday, aforesaid, carelessly, grossly, negligently, wantonly and recklessly, by and through its said servants and employés then in charge of, and operating and running, one of its freight trains of cars, with a locomotive engine attached thereto and in motion, on one of said interjacent tracks of said defendant Company, permitted the locomotive so attached to said freight train of cars last aforesaid, without any warning of any character to said decedent of danger, to run against, strike, come in contact with and knock down, and drag in a violent and forcible manner, the said John M. Gibson, now deceased, without any fault, negligence or want of care on the part of the said decedent; and that by reason of said loco motive engine so striking him, and so knocking him down, and dragging him, the said decedent was greatly bruised, cut and mangled in and about his head, back, legs, arms and body, internally, and his right leg was broken, and in consequence thereof the said decedent became sick, sore and lame, and in consequence of said injuries, so received as aforesaid, he was confined to his bed, and suffered much mental and bodily pain and agony, from the said 21st day of March, 1887, until on or about the 30th day of March, 1887, when he died, intestate, at Olathe, Kan., and that said injuries, all and singular, so received by him as aforesaid, were the cause of the death of the said John M. Gibson, without any fault, negligence or want of care on the part of said decedent contributing thereto. "Plaintiff further states that the said John M. Gibson, now deceased, left Mary E. Cochran, née Gibson, and Elizabeth J. Adams, née Gibson, his only children, him surviving, who are his only next of kin him surviving; and that by reason of the premises, all and singular, the said Mary E. Cochran and Elizabeth J. Adams, sole surviving children and sole next of kin, aforesaid, have been greatly damaged by the death of the said John M. Gibson, now deceased, in and to the amount of ten thousand ($10,000) dollars, no part of which hath been paid. Plaintiff therefore, as such administrator, demands judgment against the defendant Company herein for the sum of ten thousand ($10,000) dollars, so as aforesaid sustained, with costs of suit and equitable relief." Trial had at the September Term of the court for 1887, before the court with a jury. The court, among other things, charged the jury as follows: "1. In this case the plaintiff charges the defendant Company as being the owner, or operator, controller and manager of the Southern Kansas Railroad Company, at the time his intestate, Gibson, received his alleged injuries, and therefore I charge you that the question of liability and responsibility of the defendant Company is one of fact, to be determined by you from all the testimony in the case. "2. In determining the liability of the defendant Company, the true test is, What company had the control, direction and management of said Southern Kansas Railroad, and of the men then operating the engines and passenger trains on said road, and especially the engine and passenger train on which the plaintiff's intestate was endeavoring to take passage, if any? And in determining these questions it is your duty to take into consideration all the facts and circumstances proven by the evidence, "3. The fact that the officials of one railroad company are officials of another railroad company, standing alone, would not make the one responsible for the negligence or default of the other; neither would the mere fact of the one railroad owning stock or bonds of another railroad company make the former company responsible for the acts of the latter. But if you find from the evidence that the Southern Kansas Railroad Company, for all practical purposes, was, at the time alleged, managed, controlled and operated by the defendant Company, being used as an auxiliary and a part of the defendant Company's system of railroads, then and in that event the defendant Company would ordinarily be responsible for the negli gence, default or miscarriage of the Southern Kansas Railroad Company, its agents and employés. 4. If in fact the defendant Company exercised and assumed the actual control of the management and operation of said Southern Kansas Railroad at the time of the alleged injuries, it would be liable for the negligence, if any, of the men in operating and managing the engines and passenger trains of the Southern Kansas Railroad Company, in failing to bring its passenger trains to the platform of the depot to receive passengers, if they did so fail, even though the men were at the time engaged in the business of another railroad company, namely, the Southern Kansas Railroad Company. 5. If the jury find that the general management of both roads is under the control of the same officials; that the boards of directors of both roads are substantially the same persons; that a majority of the said stock of said Southern Kansas Railroad Company is owned by the Kansas City, Topeka & Western Railroad Company, which latter company is leased and operated by said defendant Company for its use and benefit, and that the balance of the stock of the said Southern Kansas Railroad Company is owned by the defendant Company; that both the defendant and the Southern Kansas Company use and occupy the same line of track from Kansas City, Mo., to Holliday, Kan.; that the same person is agent and ticket seller for both companies at said station, Holliday; that the treasurer of said Southern Kansas Railroad Company is also treasurer of the defendant Company, and that the clerical work for said treasurer, pertaining to the Southern | gers to enter the car at an out-of-the way place, Kansas Company, is performed by the em- or at a place remote some distance from such ployés of the defendant Company; and that the platform, it is the bounden duty of such comgeneral officers and offices of both companies pany to use the utmost care in preventing inare both one and the same,-you have a right juries to passengers while so approaching to to give such facts and circumstances due weight enter such car; and if you find, in this case, and consideration in arriving at your verdict. that the defendant Company was negligent, within the meaning of this instruction, and that the deceased was injured thereby; that the deceased did not contribute to such injury by his negligence,—then the plaintiff is entitled to recover. "18. If you believe from the evidence that the defendant Company was managing and operating and controlling the Southern Kansas Railroad Company on March 21, 1887, and that said defendant Company caused the said Southern Kansas Railway Company's passenger train to stop at Holliday to receive passengers, on said day, to be carried for hire to Olathe, and that said defendant Company then had a depot building, and platform therewith connected, at Holliday, aforesaid, for the purpose of receiving and discharging passengers to and from its own passenger trains, and for the sale of tickets, and did then sell over said several railroads, then I charge you that it was the lawful duty of the defendant Company to provide or furnish reasonably safe and convenient approaches to their several passenger coaches owned and managed, operated and controlled, by said Company, and it was the duty of said Company to also use such approaches with care and due regard for the safety of passengers who were attempting to get upon such coaches by means of such approaches; and if, upon the said Company failing to do so, an injury ensued to such passenger, then the said Company will be held liable for injuries resulting therefrom, provided such injured person was not guilty of any fault, or want of ordinary care, or of any negligence contributing thereto. "19. If the jury believe from the evidence that the deceased, on the 21st day of March, 1887, was a passenger on the defendant Company's passenger train from Eudora to Holliday, and that on reaching Holliday the deceased immediately purchased a ticket from the defendant Company's ticket agent at Holliday entitling the deceased to be carried as a passenger on the Southern Kansas Railroad passenger train from Holliday to Olathe on said day, then managed, operated and controlled by said defendant Company, and that said deceased on said day attempted to reach the Southern Kansas passenger train, bound for Olathe, in the only way provided by the Company to reach said train, which was then in waiting on a track at Holliday for passengers to Olathe, then I charge you that the deceased was a passenger at the time, and entitled to all the rights of such. "20. I charge you that a person who has a railroad ticket, and who is present to take the train at the ordinary or usual point of departure designated by the railroad company, is a passenger, though he has not entered the car of the particular train, and in the duties towards him directly involving his safety the company is bound to extraordinary diligence, and in these duties touching his convenience or accommodation the company is bound to ordinary diligence, and this rule of extraordinary diligence applies to the receiving of passengers. "21. When a carrier of passengers for hire by railway does not receive passengers into the car at the platform erected for that purpose, and either directs or impliedly invites passen "23. When the arrangement of a passenger railroad station or depot, whether permanent or temporary, is such that a passenger has to cross a track before entering, then such passenger has a lawful right to assume that such track may be crossed safely and that the company will not expose him to unnecessary danger; and, while the passenger himself must exercise reasonable care and prudence, his watchfulness may be naturally diminished by his reliance upon the discharge by the company of its duty to passengers to provide them with a safe passage to the train of cars." The jury returned a verdict against the Railroad Company for $900, and also found, among others, the following special findings of fact: "1. Was John M. Gibson, now deceased, carried by the defendant Company, on one of its passenger trains, as a passenger, from Eudora, Kan., to Holliday, Kan., on March 21, 1887? A. Yes. "2. Did the deceased, on reaching Holliday, purchase a ticket from the defendant's ticket agent at Holliday entitling him to be carried on said day from Holliday to Olathe on a passenger train of the Southern Kansas Railway Company? A. Yes. "3. Had the defendant Company the control, direction and management of the Southern Kansas Railroad, and of the men then operating the engines and passenger trains of the Southern Kansas Company, and especially the engine and passenger train upon which the deceased then intended to take passage? A. Yes.. "6. Was a majority of the stock of said Southern Kansas Railroad Company then owned by the Kansas City, Topeka & Western Railroad Company? A. Yes. 7. Was the said Kansas City, Topeka & Western Railroad Company then leased and operated by the Atchison, Topeka & Santa Fé Railroad Company, for its use and benefit? A. Yes. "8. Was the balance of the stock of the Southern Kansas Railroad Company then owned by the Atchison, Topeka & Santa Fé Railroad Company? A. Yes. "26. Was it negligence on the part of the defendant Company, when considered with all the other circumstances, in not bringing the said Southern Kansas train up to the platform so that passengers might get upon it at the time referred to? A. Yes. 27. At the time the passengers, including the deceased, left the platform to cross the tracks to get upon said Southern Kansas train, did any person connected with either the defendant Company or the Southern Kansas Railroad Company forbid or warn passengers not to cross the tracks? A. No. 30. Did the deceased then leave the plat |