it. pected to enter the vault or receiver in seasons of ordinary rains." At the conclusion of the testimony, the plaintiff presented three prayers and the defendant thirteen. the 20-inch pipe was made to discharge into | bad; and that the works, as built, were insufficient to carry off, except by an overAt the north and south ends of this 20- flow that would flood the appellant's cellar, inch pipe there were 8-inch openings lead-the amount of water which might be exing from the surface gutter; and at the northeast corner of the two streets there was laid under ground and running east wardly, a 15-inch pipe connecting with the 20-inch pipe and conveying into it the surface water gathered from the north side of Ashland avenue. At the southeast corner of these same streets there was another 15inch pipe laid conveying into the vault the surface water gathered from the south side of Ashland avenue, and from Stirling and Aisquith streets farther to the east. Lead-owned the property in question, and there is ing from the vault, and running down Ensor to Madison street, was a 15-inch outlet pipe. Water which formerly passed south across Ashland avenue and down Stirling and Aisquith streets was carried west along Ashland avenue to this vault. The court rejected all of those offered by the plaintiff, and granted one at the instance of the defendant, whereupon the defendant withdrew the others which it had presented. The instruction granted is in these words: "It being an admitted fact that the defendant's drain was laid before the plaintiff no legally sufficient evidence that the plaintiff notified the defendant that the drain caused an injury to the same, the verdict must be for the defendant." Under this imperative instruction the verdict was, of course, rendered for the defendant, and from the judgment entered thereon the plaintiff appealed. The bed of Ashland avenue was raised to accommodate the location of the conduit. It was made the duty of the company to There were several questions discussed in keep in repair, and to remove obstructions the argument at the bar, but the controlfrom this vault and these underground sew-ling ones are those raised by the instruction ers or pipes. It will be noticed that all the water entering this vault from the two 8inch openings, and from the two 15-inch pipes, was designed to be discharged through one 15-inch outlet, and that the volume of water brought to the vault by these works of the company was greater than had formerly passed the southeast corner of the two streets-Ensor street and Ashland avenue upon the surface. All this work was done by the railway company under the direction of the city commissioner. just transcribed, and by the rejection of the prayers of the plaintiff. If the railway company elevated the bed of Ashland avenue, and brought an increased volume of water to the corner of Ensor street and Ashland avenue, and then by the negligent and unskilful construction of, or attention to, the sewers, or drains and vault, designed to carry off the water, failed to convey it away, whereby it overflowed the vault or receiver, and damaged the plaintiff's house, it can scarcely be doubted that the company is liable. When the company undertook to change the accustomed flow of the surface water and to concentrate it in underground drains and a vault, at a point where but a part of it formerly had harmlessly flowed on the surface, it was bound, at its peril, to provide adequate means to discharge the water In 1896 the appellant purchased a house at the southeast corner of Ensor street and Ashland avenue in the immediate vicinity of, or about 12 feet away from, the vault described above. At the time he purchased the house the cellar was dry, and the walls were free from cracks, although these drain pipes had been laid and this vault had been built for some four years. Shortly after-so ward the vault overflowed and the cellar of the appellant's house was flooded. When the vault was cleaned out by the railroad company the water in the cellar receded. This overflowing and flooding occurred on subsequent occasions and in every instance from an ordinary rainfall. As a result of these overflows the walls of the appellant's house were so damaged and rendered so unsafe that the house was, by direction of the building inspector, taken down. The appellant then sued the railway company for the damage thus sustained by him. He alleged in his declaration that, "by reason of the careless, unskilful, and negligent manner in which suid sewer was constructed, kept in repair, and attended to," water came into the cellar "of his house, and caused the injury just described." These facts were shown by the evidence, and there was also testimony tending to prove that the plan of this construction of the drain pipes and vault, or receiver, was gathered by it, and to discharge it in a way that would not be injurious to others. This was a perfectly plain duty that was incumbent upon it; and it is no answer to say that it relied on the judgment of competent engineers in the construction of its works, if, in fact, the works, as constructed, are inadequate to accomplish the purpose, or were unskilfully built. The employment of a competent engineer to direct the work is not the fulfilment of a duty to avoid doing injury to another, when, notwithstanding the engineer's competency, the work as constructed does cause injury. The test of liability is not the fitness of the engineer, but the efficacy of the work. Hitchins Bros. v. Frostburg, 68 Md. 113, 11 Atl. 826. Assuming this to be true, the doctrine laid down in the instruction which took the case from the jury is, that a recovery cannot be had against the original wrongdoer by one who, after the construction of the work which did the injury, became the own er of the property injured, unless the party | upon request made he refuses to remove the sustaining the injury first notifies the nuisance. Even "when he who erects the wrongdoer to remove the cause of the in- nuisance conveys the land he does not transjury and the latter omits or refuses to do fer the liability to his grantee." Plumer v. Harper, 3 N. H. 88, 14 Am. Dec. 333. So. It is clear, then, upon reason and authority, that no notice was required to be given by the appellant to the railway company, the original erector of the structure which caused the injury, before the pending ly error committed in granting the instruction which took the case away from the jury on the sole ground that such notice had not been given. This doctrine is not tenable, and the case of Pickett v. Condon, 18 Md. 412, relied on to sustain it, does not do so. Ever since the decision of Penruddock's Case, 5 Coke, 101, it has been the settled law that the alienee of land upon which a nuisance ex-suit was brought, and there was consequentisted when the alienee acquired the land is not liable to the owner of other property, subsequently purchased, for an injury done to the latter by the pre-existing nuisance, until the alienee has been first notified to As to plaintiff's rejected prayers, but litabate the nuisance. This was all that wastle need be said. There was evidence tenddecided in Pickett v. Condon. Condon ac- ing to support the hypothesis which they quired property in 1855. At that time the set forth. land had a dam on it across a stream. Pickett and wife acquired their property in 1856. The dam erected by Condon's grantor caused the water to flow back on Pickett's mill. Pickett sued Condon, and it was held that as Condon's grantor, and not Condon, had erected the dam, and as Condon had not been notified to remove it, he was not answerable. The reason of the rule is obvious. A person who has not erected a work that may become a nuisance or occasion damage, or who was in no way connected with its construction, is not responsible for the injury it does cause, if he subsequently becomes the owner of the property upon which the nuisance is located, and thus gets control of the injurious thing. Knowledge that it is injurious must be brought home to him, and an opportunity must be afforded him to abate it, before he can be made liable; otherwise he would be held responsible, not for his own, but for his grantor's, wrongful act. If, with that knowledge, he does not abate the nuisance, he is treated as continuing it. And so all the cases from Penruddock's down, have been held. Philadelphia & R. R. Co. v. Smith, 28 U. S. App. 134, 64 Fed. Rep. 679, 12 C. C. A. 384, 27 L. R. A. 131, and cases there cited. But the bare statement of the proposition that where the party sued was not the original creator of the nuisance he must have notice of it, and a request must be made to remove it, before any action can be brought, carried with it the exclusion of its application to the original wrongdoer. Why should the original wrongdoer have notice before being sued? It is his negligent act which causes the injury; and for that negligent act, and not for a continuance of it after notice given, he is answerable. Notice to him from anyone injured by his wrongful act is wholly unnecessary. Metropolitan Sav. Bank v. Manion, 87 Md. 68, 39 Atl. 90. In Eastman v. Amoskeag Mfg. Co. 44 N. H. 144, 82 Am. Dec. 201, it was held that no notice or request to abate the nuisance is necessary before bringing suit against the original wrongdoer; but that the grantee of the nuisance is not liable until If the facts alleged in the narr. make a good cause of action, as they undoubtedly do, then the prayers submitting the finding of those facts to the jury should have been granted. There was quite enough evidence from which the jury could well have determined that the injury to the house resulted from the negligent or unskilful construction of, or attention to, the sewer and vault. It is true, it was insisted in the argument that there was no evidence before the jury to show any relation between the construction of the sewer and vault and the injury to the house, and it was contended that although these events were contiguous in time and place, there was nothing more than a coincidence in their occurrence, and that, therefore, it was a palpable fallacy to assume that the one was the cause of the other. It is sheer sophistry to assume that because a given thing is posterior in occurrence to another it is therefore the result of the anterior event. The plaintiff's contention, however, is, not simply that because before the sewer and vault were built there was no injury to the house, and because after they had been constructed there was an injury, that, therefore, the injury was the result of their being built, but the facts tended to show that only when the sewer and vault were choked and overflowed, either by reason of the insufficiency of the outlet, or because of the company's inattention to their condition, did the cellar become flooded. The cause of the actual damage was traced to the overflowing vault, and the negligence or unskilfulness of the company occasioned those overflows. Between the alleged cause and its asserted result there was a direct connection; in fact, a dependency of the one upon the other as actually traced by one of the witnesses; and this is widely different from that fallacious reasoning in which that which is no cause at all is assumed to produce an alleged effect simply because the two are contiguous in time and place, while having no other relation to each other than sequence in the order of their occurrence. There was but one cause proved that produced the injury. There is nothing in the record to bring the case within the doctrine followed in Wise's Case. That doctrine briefly stated is: When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. A verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong. Harford County Comrs. v. Wise, 75 Md. 42, 23 Atl. 65. For the reasons we have assigned, the prayers of the plaintiff ought to have been granted, and the instruction which was given by the court ought to have been refused. Because of these errors the judgment must be reversed and a new trial will be awarded. Judgment reversed, with costs above and below, and new trial awarded George W. BOWEN v. IOWA SUPREME COURT. NOTE.-Effect of judgment against garnishee to merge or satisfy liability of principal debtor. The question as to the effect of a judgment against a garnishee to merge or satisfy the liability of the principal debtor seems to depend, as a general rule, upon whether or not the judgment against the garnishee has been satisfied, or, at least, upon whether or not it is in such shape that immediate and complete satisfaction could be enforced; and the rule seems to be universal that a satisfied judgment against the garnishee, if it was duly rendered in the exercise of jurisdiction, merges or satisfies the liability of the principal debtor either pro. tanto or in full, as the case may be. Thus, the whole effect of a recovery against a garnishee inures to the benefit of the original creditor by having it applied to that creditor's debt to his creditor. Brown v. Somervilie, 8 Md. 444, dictum. And where a creditor recovers judgment against his debtor, and sues out a writ of garnishment thereon against one indebted to the judgment debtor, and procures judgment against the garnishee on an admission of indebtedness, and the judgment has been paid off in full, such payment is a payment pro tanto on the original indebtedness due the plaintiff, and he can only recover the balance in an action against a surety for the judgment debtor. Parks v. State Nat. Bank (Tex. Civ. App.) 34 S. W. 1044. And a plaintiff in an attachment action in which a bond was given for the release of the property attached, who brings action upon the attachment bond, is entitled to recover against the principal and sureties therein where judgment had been obtained against him by a creditor, and the principal in the attachment bond had been charged as trustee, and judgment had APPEAL by defendant from a judgment of the District Court for Carroll County refusing to declare satisfied a judgment against defendant upon its tender of the amount remaining due after application of the amount attached in the hands of the solvent garnishee. Reversed. The facts are stated in the opinion. Messrs. Jamison & Smyth, for appellant: The legal effect of the judgment against the garnishee is to satisfy to the extent of such judgment the indebtedness between the garnishee and the principal debtor. Stadler Bros. v. Parmlee, 14 Iowa, 175. Garnishment is in effect an action against the garnishee by the defendant in the name of and for the benefit of the plaintiff, and the garnishee may be made personally liable. Mooar v. Walker, 46 Iowa, 146; McConnell | been obtained against him as such, and he had paid the execution in suit in which he was charged as trustee, and caused the fact of such payment to be duly entered of record in the attachment suit according to the law, for costs, and such part of the damages as remained unpaid only. Wood v. Mann, 125 Mass. 319. So, in Cross v. Brown, 19 R. I. 220, 33 Atl. 147, it was held that R. I. Pub. Stat. chap. 208, § 15, in so far as it provides that a trustee after final judgment against the defendant may satisfy the same, and that the payment thereof shall discharge him from his debt as against both plaintiff and defendant, is simply declarative of the legal status of the parties to the contract out of which the original indebtedness arose after such change of title to it has been effected by the process of garnishment, and it is not the statute which discharges the debt due from the trustee to the principal debtor, but it is the payment of the debt to the attaching plaintiff in satisfaction of his judgment against the principal defendant that discharges it; and that that statute is not unconstitutional in so far as it affects debts due to nonresidents as depriving the owners of their property in the debt without due process of law, or as impairing the obligations of the contract. The above case is included because of its bearing upon the question of the discharge of the indebtedness of the principal debtor to his creditor by payment by the garnishee. The subject of the garnishment of debts due to nonresidents, and the validity of judgments with reference thereto, are not treated in this note. See also infra, Price v. Higgins, 1 Litt. (Ky.) 274; Backus v. Denison, Kirby, 421. So, there are cases from which it might be inferred that a judgment against a garnishee which had not been discharged, and remained in v. Denham, 72 Iowa, 494, 34 N. W. 298; Gil- | more v. Cohn, 102 Iowa, 254, 71 N. W. 244; Citizens' State Bank v. Council Bluffs Fuel Co. 89 Iowa, 624, 57 N. W. 444. The effect of a garnishment is to stop the payment of any debt up to the time of final proceedings. Victor v. Hartford F. Ins. Co. 33 Iowa, 210. While garnishment is simply a mode of attachment, when final judgment condemning the property is entered, and the sale of the attached property ordered, the legal effect is to prima facie satisfy the judgment to the extent of the property. Peck v. Parchen, 52 lowa, 46, 2 N. W. 597. In case of a garnishment, the entering of judgment in favor of the plaintiff and against the garnishee is the appropriation of the property to the payment of the principal every way enforceable, might work a merger or satisfaction of the liability of the principal debtor, though it had not been actually satisfied. Thus, the service of a garnishment upon one indebted to an execution debtor in an amount sufficient to satisfy the judgment, without more, is not such a levy as will amount to a satisfaction of the judgment, upon the principle that the icvy of an execution upon personal property of the execution debtor of sufficient value is a satisfaction of the execution. Beaumont v. Eason, 12 Heisk. 417. And by the custom of London the suing out execution against a garnishee by a creditor is in effect an election to take him for the debt of the principal debtor, and operates an extinguishment of the debt. Cook v. Field, 3 Ala. 53, 36 Am. Dec. 436, dictum. debt; and where it is shown that the garnishee was good at the time, and that the judgment could have been collected, why should the plaintiff not be bound to answer for the value of the judgment against the garnishee, the same as he would if it were in other form of property? Lucas v. Cassaday, 2 G. Greene, 208; McCabe v. Goodwine, 65 Ind. 288; Harmon v. State ex rel. Pelton, 82 Ind. 197; Doe ex dem. Shelton v. Hamilton, 23 Miss. 496, 57 Am. Dec. 149; Peck v. Parchen, 52 Iowa, 46, 2 N. W. 597; Citizens' State Bank v. Council Bluffs Fuel Co. 89 Iowa, 624, 57 N. W. 444. The execution is satisfied to the extent of the value of the property levied upon, where said property has been lost to the defendant by the neglect of the sheriff. Walker v. Com. 18 Gratt. 13, 98 Am. Dec. 631; First Nat. Bank v. Rogers, 13 Minn. tion, but reduces the demand to judgment so that execution may follow against the trustee for the amount due from him, or for so much of it as may be necessary to satisfy the judgment against the principal defendant; but the question in this action was as to the right of the judgment debtor to maintain an action against the trustee on his claim during the pendency of the trustee suit. And in Mars v. Virginia Home Ins. Co. 17 S. C. 514, it was said that a judgment in garnishment is conclusive against parties and privies; but the question in the case was as to whether or not the garnishee could be compelled to pay the debt a second time. And in Adams v. Filer, 7 Wis. 306, 73 Am. Dec. 410, it was said that ordinarily the creditor of the garnishee is the defendant in the atprinci-tachment, and has, not only the opportunity to contest the original cause of action, but also the liability of the garnishee, and in such cases, when the garnishee acts in good faith, the judgment is conclusive as to all the parties, the plaintiff, the defendant and the garnishee; but the question in this case was as to whether or not the payment by the garnishee was voluntary, and as to his liability to pay again to his creditor. So, a garnishment of moneys due the pal debtor under a judgment against him in favor of his creditor for a much larger sum is a pro tanto defense in an action brought against the original debtor by the original creditor, where the moneys garnished are still held under the process. Peck v. Parchen, 52 Iowa, 46, 2 N. W. 597. And an admission by the garnishee that a designated amount is due to his creditor, who was the principal debtor in a garnishment suit, entitles the principal debtor to a credit on the judgment against him of the amount thus admitted to be due, where there was no evidence that the garnishee was ever discharged, and the principal debtor denies that the garnishment was released, or that defendant ever received the amount of the indebtedness from the garnishee, though no case was ever docketed against the garnishee, and no judgment rendered, and it does not appear that the garnishee ever made payment to the garnishing creditor. Doughty v. Meek, 105 Iowa, 16, 74 N. W. 744. And a recovery in a garnishee suit brought by a creditor, not against the primary debtor of his. debtor, but against a guarantor of the claim, from which no appeal is taken, entitles the primary debtor to a credit for the amount recovered against the guarantor on his indebtedness to the debtor of the plaintiffs, the same as though it had been paid without suit by the guarantor to the plaintiffs. Coe v. Hinkley, 109 Mich. 608, 67 N. W. 915. So, in Hicks v. Gleason, 20 Vt. 139, it was said that a trustee suit aims to substitute the creditor in the place of the debtor in respect to any sum due the latter from the persons named in the suit as trustees, and, if successful, it not only establishes a right to such substitu But diligence in procuring satisfaction of the judgment against the garnishee is required to render it effectual as a bar to the claim against the principal debtor. This is in effect the doctrine of the principal case. So, a judgment creditor, who has through process of garnishment reached the assets of the principal debtor in the hands of a third party, and obtained judgment against the garnishee, is chargeable with diligence in preserving and applying the proceeds of the sale of the property taken under garnishment to the satisfaction of the judgment, and where the judgment debtor was insolvent, and the garnishee was solvent, and he fails to exercise diligence, and the judgment remains unsatisfied through his neglect, a surety of the judgment debtor is relieved. Parks v. State Nat. Bank (Tex. Civ. App.) 34 S. W. 1044. And when the garnishee in such case sought to enjoin such judgment, and the surety requested the creditor, in order to protect himself, to be allowed to appear and contest the injunc tion, and promised to pay costs and attorney's fees, and the request was denied, the creditor himself promising the surety to appear and contest the injunction, but through collusion with the principal debtor and garnishee for the pur 407, Gil. 376, 97 Am. Dec. 239; Reed v. sona: Garnishment is merely a mode of attachment and execution where money or property of the debtor in the hands of a third person is levied upon, and by subsequent proceedings in the court wherein the action is pending subjected to the payment of the claim or the judgment of the creditor. 8 Am. & Eng. Enc. Law, p. 1097, ¶ 1. The effect of the judgment against the garnishee is to declare the debt bound, and to make the garnishee liable to execution. 8 Am. & Eng. Enc. Law, p. 1102, 2; Chatterton v. Watney, L. R. 17 Ch. Div. 259. Subject to such claims, the rights of the defendant for the purpose of making demand pose of injuring the surety, and making him pay the debt, made no resistance, and let the injunction be perpetuated, it was a violation of duty, and a plea to that effect in an action against him as surety is good, at least against a general demurrer. Ibid. But a judgment debtor cannot maintain assumpsit against his creditor for neglect of the ereditor to issue execution against a trustee in the action for twenty years, where it does not appear that issuing execution would have been of any service to the debtor, as where the trustee remains all the time insolvent. Noble v. Merrill, 48 Me. 140. And a judgment against a trustee on a trus tee process is not a discharge of a judgment against the original debtor, though by means of the trustee suit payment by the trustee to the debtor was prevented, and the debt was lost by the subsequent insolvency of the trustee. Ibid. But while the rule of the principal case, that a garnishment judgment is prima facie a satisfaction, or pro tanto satisfaction, of the plaintiff's claim, is undoubtedly correct, many of the cases have gone on the theory that it is prima facie a satisfaction as a matter of evidence only, and that it is not conclusive; and the rule that nothing but an actual satisfaction of the judgment against the garnishee will absolve the principal debtor from liability when sued for the debt by the original creditor is well supported by authority. Thus, an attachment without satisfaction does not of itself prevent the plaintiff in the attachment suit from resorting to his original debtor. Brown v. Somerville, 8 Md. 444. Judgment against a garnishee so long as it remains unsatisfied is no bar to the creditor's making his money out of his original debtor on his judgment against him. Farmer v. Simpson, 6 Tex. 303. But see supra, Parks v. State Nat. Bank (Tex. Civ. App.) 34 S. W. 1044. And if judgment against a third person on a foreign attachment be not executed, the plaintiff may resort back to his principal debtor, and he may also sue a third person for his debt, notwithstanding the judgment in foreign attachment is unexecuted. Robertson v. Norroy, 1 Dyer, 83a. A judgment against the defendant in an attachment is not extinguished by a judgment for the whole amount subsequently rendered in the same suit against garnishees, though if either was satisfied the plaintiff would not be permitted to enforce the collection of the other. Price v. Higgins, 1 Litt. (Ky.) 274. of his debtor or of securing his indebtedness by attachment or otherwise remain unimpaired. Hicks v. Gleason, 20 Vt. 139. Until garnishee's liability is discharged by satisfaction of a valid judgment against him in the garnishment proceeding, the rights of the defendant to enforce his claim are suspended only, not extinguished. 8 Am. & Eng. Enc. Law, p. 1201; Smith v. Clinton Bridge Co. 13 Ill. App. 572. Judgment for plaintiff after issue joined is complete as a personal judgment, and may be executed against any property of the defendant not exempt by law. Waples, Attachment & Garnishment, 506, § 14; Waynant v. Dodson, 12 Iowa, 22. A judgment against a garnishee is rather in favor of the principal defendant than against him. It is really a judgment in fa property in the hands of a third person, and after judgment levies an execution upon it, It applies as a payment to the creditor, and exonerates the third person from claim by the debtor; but where it does not appear that the creditor took anything from the third person by his execution, or upon any agreement that the property should be applied thereon, the creditor is entitled to recover against the debtor for the amount of the debt, though property was placed in the hands of the creditor by the third person, where the purpose for which it was so placed does not appear. Backus v. Denison, Kirby, 421. And where judgment is recovered by a creditor against his debtor on an account for goods sold, and a third person is garnished and admits his indebtedness to the principal debtor, and judgment is rendered against him upon his answer, but is never paid, and the principal debtor transfers to the plaintiff a claim against a third person, and the plaintiff brings action thereon, the third person cannot defend upon the ground that the claim thus assigned and sued upon was for the identical goods for which judgment was rendered against the garnishee, and the fact that the judgment had been rendered against the garnishee, but not paid, would not prevent the plaintiff from suing the third person upon the debt thus admitted by the garnishee and afterwards assigned by the defendant to the plaintiff, or from showing that such third person, and not the garnishee, was the real debtor. Lewis v. Robertson, 100 Ala. 246, 14 So. 166. So, in Brown v. Somerville, 8 Md. 444, it was held that where a judgment of condemnation is rendered against a garnishee, and before execution is issued he is sued by the holder of a note for a smaller sum which was one of the attached choses, and pending the suit he purchases the judgment for a sum much less than its face value, the purchase is no defense in the action on the note, because the whole debt is not thereby paid, and the defendant in the attachment has an interest in having the whole debt paid, and the garnishee occupies no better position than if any other person had purchased the judgment. And in Cook v. Field, 3 Ala. 53, 36 Am. Dec. 436, holding that a judgment against a garnishee is not a defense in an action by his original creditor unless it has been satisfied, it was said that where the plaintiff in an attachment suit obtains a judgment against the defendant in attachment, as well as against the garnishee, on And where a creditor attaches his debtor's both of which he may have execution, it will |