right of said Hutchinson & Ingers 11 to pledge or negotiate it. Nor did the railroad company know or suspect that the firm had parted with or hypothecated said note until August 15, 1873.

The company, by reason of certain advances made to its use by Hutchinson & Ingersoll, became indebted to the latter, on the 8th of August, 1873, in the sum of $600. On the 15th day of August, 1873, it tendered that sum to the firm, and demanded a return of the $5,000 note. During the same month it made a like tender to the bank, and demanded the note.

The $36,000 loan was paid in full out of the collaterals given to secure its payment, as they respectively matured, without resorting to the note in suit, the first payment of $4,580 being July 22, 1873, and the last payment being April 4th, 1874, leaving the $5,000 note in the bank's possession.

Hutchinson & Ingersoll are insolvent. The collaterals collected exceeded the $36,000 loan by $4,503.61.

On the $10,000 loan of July 11, 1873, there was a balance due the bank, November 21, 1876, of $5,136.68 after exhausting all collaterals in its possession which had been specially pledged to secure that loan, and crediting the amount, with interest collected, of a certain judgment to be now referred to.

In 1874 the bank sued Palmer & Co., as indorsers upon the note in suit, in the Supreme Court of New York. The case was sent to a referee, who rendered judgment in favor of the bank for $601, which seems to be the amount due from the railroad company to Hutchinson & Ingersoll. That judgment, with the costs, was satisfied.

The present action is by the bank against the railroad company to recover the amount of the $5,000 note executed by the latter on the 9th of May, 1873, and placed in the hands of Hutchinson & Ingersoll for sale for the benefit of the company.

The court below gave judgment for the bank, to reverse which the company has prosecuted this writ.

First. The first proposition of the plaintiff in error is that there has been a final determination by a court of competent jurisdiction, between the same parties or their privies, upon the same subject-matter as that here in controversy. This contention rests upon the judgment of the Supreme Court of New York in the action instituted by the bank against Palmer & Co., as the indorsers of the note in suit.

The judgment in the State court clearly constitutes no bar to the present action. Personal judgments bind only parties and their privies. The railroad company was in no sense a party to the separate action against Palmer & Co. Nor did it receive notice from the latler of the pendency of that suit. It was therefore in no manner affected by the judgment. Had the company received such notice in due time, it would, perhaps, although not technically a party to the record, have been estopped, at least as between it and its accommodation indorsers, from saying that the latter were not bound to pay the judgment, if obtained without fraud or collusion. Being however an entire stranger to the record, it had no opportunity or right, in that proceeding, to controvert the claim of the bank, to control the defense, to introduce or cross-examine witnesses, or to prosecute a writ of error from the judgment.

If, in the action against Palmer & Co., the bank had obtained judgment for the full amount of the note, and being unable to collect it, had sued the railroad company, the latter would not have been precluded by the judgment in that action, to which it was not a party, and of the pendency of which it had not been notified, from asserting any defense it might have against the note. This being so, it results that the company cannot plead the judgment in the State court as a bar to this action. An estoppel arising out of the judgment of a court of competent jurisdiction

is equally conclusive upon all the parties to the action and their privies. It may not be invoked or repudiated at the pleasure of one of the parties as his interest may happen to require.

The liability of the maker and indorsers was not joint, but several, and therefore a judgment in an action against the indorsers, upon the contract of indorsement, could not bar a separate action by the bank against the maker- certainly not, where the maker was without notice from the indorsers of the pendency of the action against them.

Second. The next proposition involves the right of the railroad company to show, as against the bank, that the note was executed and delivered to Hutchinson & Ingersoll for the purpose only of raising money upon it for the company, and that consequently they had no authority to pledge it as collateral security for their own indebtedness to the bank. It will have been observed, from the statement of facts, that the note in suit was among those pledged to the bank as security for the call loan of $36,000, made on June 19, 1873; that Howes, Hyatt & Co., whose notes had been pledged as security for the call loan of $10,000, made on June 19, 1873, having become insolvent, Hutchinson & Ingersoll, July 22, 1873, at the request of the bank, executed the writing dated June 19, 1873, whereby they pledged all securities, bonds, stocks, things in action, or other property theretofore deposited with the bank, whether specifically or not, as security for the payment of any and every indebtedness, liability, or engagement held by the bank for which they were, or should become, in any way liable. Although, therefore, the call loan of $36,000 was extinguished, without resorting to the note in suit, that note, under the agreement made on the 22d of July, 1873, stood pledged as collateral security also for the $10,000 call loan of July 11, 1873.

The bank, we have seen, received the note before its maturity, indorsed in blank, without any express agreement to give time, but without notice that it was other than ordinary business paper, or that there was any defense thereto, and in ignorance of the purposes for which it had been executed and delivered to Hutchinson & Ingersoll. Did the bank, under these circumstances, become a holder for value, and as such entitled, according to the recognized principles of commercial law, to be protected against the equities or defenses which the railroad company may have against the other parties to the note?

This question was carefully considered, though perhaps it was not absolutely necessary to be determined, in Swift v. Tyson, 16 Pet. 1. After stating that the law respecting negotiable instruments was not the law of a single country only, but of the commercial world, the court, speaking by Mr. Justice Story, said: "And we have no hesitation in saying that a pre-existing debt does constitute a valuable consideration in the sense of the general rule already stated as applicable to negotiable instruments. Assuming it to be true (which, however, may well admit of some doubt from the generality of the language) that the holder of a negotiable instrument is unaffected with the equities between antecedent parties, of which he has no notice, only where he receives it in the usual course of trade and business for a valuable consideration, before it becomes due; we are prepared to say that receiving it in payment of, or as security for a pre-existing debt, is according to the known usual course of trade and business. And why, upon principle," continued the court, "should not a pre-existing debt be deemed such a valuable consideration? It is for the benefit and convenience of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances, made upon the transfer thereof, but also in payment of and as security for

pre-existing debts. The creditor is thereby enabled to realize or to secure his debt, and thus may safely give a prolonged credit, or forbear from taking any legal steps to enforce his rights. The debtor also has the advantage of making his negotiable securities of equivalent value to cash. But establish the opposite conclusion, that negotiable paper cannot be applied in the payment of, or as security for pre-existing debts, without letting in all the equities between the original and antecedent parties, and the value and circulation of such securities must be essentially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then by circuity to apply the proceeds to the payment of his debts. What, indeed, upon such a doctrine would become of that large class of cases, where new notes are given by the same or by other parties, by way of renewal or security to banks, in lieu of old securities discounted by them, which have arrived at maturity? Probably more than one-half of all the bank transactions in our country as well as those of other countries are of this nature. The doctrine would strike a fatal blow at all discounts of negotiable securities for pre-existing debts."

After a review of the English cases, the court proceeded. They directly establish that a bona fide holder, taking a negotiable note in payment of, or as security for a pre-existing debt, is a holder for a valuable consideration, entitled to protection against all the equities between the antecedent parties."

The opinion in that case has been the subject of criticism in some courts, because it seemed to go beyond the precise point necessary to be decided, when declaring that the bona fide holder of a negotiable note, taken as collateral security for an antecedent debt, was protected against equities existing between the original or antecedent parties. The brief dissent of Mr. Justice Catron was solely upon that ground, which renders it quite certain that the whole court was aware of the extent to which the opinion carried the doctrines of the commercial law upon the subject of negotiable instruments transferred or delivered as security for antecedent indebtedness. In the judgment of this court, as then constituted (Mr. Justice Catron alone excepted), the holder of a negotiable instrument, received before maturity, and without notice of any defense thereto, is unaffected by the equities or defenses of antecedent parties, equally whether the note is taken as collateral security for, or in payment of, previous indebtedness. And we understand the case of McCarty v. Roots, 21 How. 439, to affirm Swift v. Tyson, upon the point now under consideration. It was there said: +6 Nor does the fact that the bills were assigned to the plaintiff as collateral security for a pre-existing debt, impair the plaintiff's right to recover. *** The delivery of the bills to the plaintiff as collateral security for a pre-existing debt, under the decision of Swift v. Tyson, was legal."

It may be remarked in this connection that the courts holding a different rule have uniformly referred to an opinion of Chancellor Kent in Bay v. Coddington, 5 Johns. (N. Y) 56, reaffirmed in Coddington v. Bay, 20 id. 637. There is, however, some reason to believe that the views of that eminent jurist were subsequently modified. In the 6th edition of his Commentaries, side page 81, note b, prepared by himself, reference is made to Stalker v. McDonald, 6 Hill, 93, in which the principles asserted in Bay v. Coddington were re-examined and maintained in an elaborate opinion by Chancellor Walworth, who took occasion to say that the opinion in Swift v. Tyson was not correct in declaring that a pre-existing debt was, of itself, and without other circumstances, a sufficient consideration to entitle the bona fide holder, without notice,

to recover on the note, when it might not, as between the original parties, be valid. But Chancellor Kent adds: "Mr. Justice Story, on Promissory Notes, p. 215, note 1, repeats and sustains the decision in Swift v. Tyson, and I am inclined to concur in that decision as the plainer and better doctrine. Of course it did not escape his attention that the court in Swift v. Tyson declared the equities of prior parties to be shut out as well when the note was merely pledged as collateral security for a pre-existing debt, as when transferred in payment or extinguishment of such debt.

According to the very general concurrence of judicial authority in this country as well as elsewhere, it may be regarded as settled in commercial jurisprudence there being no statutory regulations to the contrary that where negotiable paper is received in payment of an antecedent debt; or where it is transferred, by indorsement, as collateral security for a debt created, or a purchase made at the time of transfer; or the transfer is to secure a debt, not due, under an agreement express or to be clearly implied from the circumstances, that the collection of the principal debt is to be postponed or delayed until the collateral matured; or where time is agreed to be given and is actually given upon a debt overdue in consideration of the transfer of negotiable paper as collateral security therefor; or where the transferred note takes the place of other paper previously pledged as collateral security for a debt, either at the time such debt was contracted or before it became due; in each of these cases the holder who takes the transferred paper before its maturity, and without notice, actual or otherwise, of any defense thereto, is held to have received it in due course of business, and in the sense of the commercial law, becomes a holder for value, entitled to enforce payment without regard to any equity or defense which exists between prior parties to such paper.

Upon these propositions there seems at this day to be no substantial conflict of authority. But there is such conflict where the note is transferred as collateral security merely, without other circumstances, for a debt previously created. One of the grounds upon which some courts of high authority refuse in such cases to apply the rule announced in Swift v. Tyson is, that transactions of that kind are not in the usual and ordinary course of commercial dealings. But this objection is not sustained by the recognized usages of the commercial world, nor, as we think, by sound reason. The transfer of negotiable paper as security for antecedent debts, nothing more, constitutes a material and an increasing portion of the commerce of the country. Such transactions have become very common in financial circles. They have grown out of the necessities of business, and in these days of great commercial activity they contribute largely to the benefit and convenience both of debtors and creditors. Mr. Parsons, in his Treatise on the Law of Promissory Notes and Bills of Exchange, discusses the general question of the transfer of negotiable paper under three aspects-one, where the paper is received as collateral security for antecedent debts. We concur with the author, "that when the principles of the law merchant have established more firmly and unreservedly their control and their protection over the instruments of the merchant, all of these transfers (not affected by peculiar circumstances) will be held to be regular, and to rest upon a valid consideration." 1 Pars. on Notes and Bills, 218, 2d ed.

Another ground upon which some courts have declined to sanction the rule announced in Swift v. Tyson is, that upon the transfer of negotiable paper merely as collateral security for an antecedent debt, nothing is surrendered by the indorsee that to permit the equities between prior parties to prevail deprives him of no right or advantage enjoyed at the time of trans

fer; imposes upon him no additional burdens, and subjects him to no additional inconveniences.

§ 4, ch. 6; and Redfield & Bigelow's Lead. Cas. on Bills of Ex. and Prom. Notes, where the authorities are cited by the authors.

Third. It is, however, insisted that by the course of judicial decision in New York, negotiable paper transferred merely as collateral security for an antecedent debt, is subject to the equities of prior parties exist

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The bank did not take the note in suit as a mere agent to receive the amount due when it suited the convenience of the debtor to make payment. It received the note under an obligation imposed by the commercial law to present it for payment and give notice of non-payment in the mode prescribed by the settled rules of that law. We are of opinion that the undertaking of the bank to fix the liability of prior parties by due presentation for payment and due notice in case of non-payment - an undertaking necessarily implied by becoming a party to the instrument -was a sufficient consideration to protect it against equities existing between the other parties, of which it had no notice. It assumed the duties and responsibilities of a holder for value and should have the rights and privileges pertaining to that position. The correctness of this rule is apparent in cases like the one now before us. The note in suit was negotiable in form, and was delivered by the maker for the purpose of being negotiated. Had it been regularly discounted by the bank at any time before maturity and the proceeds either placed to the credit of Hutchinson & Ingersoll, or applied directly to the discharge, pro tanto, of any one of the call loans previously made to them, it would not be doubted that the bank would be protected against the equities of prior parties. Instead of procuring its formal discount Hutchinson & Ingersoll used it to secure the ultimate payment of their own debt to the bank. At the time the written agreement of July 22, 1873, was executed, by which this note, with others, was pledged as security for any debt then or thereafter held against them, the bank had the right to call in the $10,000 loan, that is, to require immediate payment. The securities upon which that loan rested had become in part worthless, and it is evident that but for the deposit of additional collateral securities the bank would have called in the loan, or resorted to its rightful legal remedies for the enforcement of payment. It was, under the circumstances, the duty of the debtors to make such payment, or to secure the debt. It was important to them, and was in the usual course of commercial transactions, to furnish such security. If the bank was deceived as to the real ownership of the paper, or as to the purposes of its execution and delivery to Hutchinson & Ingersoll, it was because the railroad company intrusted it to those parties in a form which indicated that the latter were its rightful holders and owners, with absolute power to dispose of it for any purpose they saw proper.

Our conclusion, therefore, is that the transfer, before maturity, of negotiable paper as security for an antecedent debt merely, without other circumstances, if the paper so indorsed that the holder becomes a party to the instrument, although the transfer is without express agreement by the creditor for indulgence, is not an improper use of such paper, and is as much in the usual course of commercial business as its transfer in payment of such debt. In either case the bona fide holder is unaffected by equities or defenses between prior parties of which he had no notice. This conclusion is abundantly sustained by authority. A different determination by this court would, we apprehend, greatly surprise both the legal profession and the commercial world. Bigelow's Bills and Notes, 502 et seq.; 1 Daniel on Neg. Instr. (2d ed.) ch. 25, §§ 820 to 833; Story on Prom. Notes, §§ 186 and 195 (7th ed.) by Thorndyke; 1 Pars. on Notes and Bills, 218 (2d ed.),

cated in New York, and the other parties being citizens of the same State, and the contract having been there made, this court is bound to accept and follow the decision of the State court whether it meets with our approval or not. This contention rests upon the provision of the statute which declares that "the laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply."

It is undoubtedly true that if we should apply to this case the principles announced in the highest court of the State of New York, a different conclusion would have been reached from that already announced. That learned court has held that the holder of negotiable paper transferred merely as collateral security for an antecedent debt, nothing more, is not a holder for value within those rules of commercial law, which protect such paper against the equities of prior parties.

The question here presented is concluded by our former decisions.

We remark, at the outset, that the section of the statute of the United States already quoted is the same as the 34th section of the original judiciary act.

In Swift v. Tyson, supra, the contention was that this court was obliged to follow the decisions of the State courts in all cases where they apply. But this court said: "In order to maintain the argument it is essential therefore to hold that the word 'laws' in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and not of themselves laws. They are often re-examined, reversed, and qualified by the courts themselves, whenever they are found to be either defective, or illfounded, or otherwise incorrect. The laws of a State are more easily understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the various cases which have hitherto come before us for decision this court have uniformly supposed that the true interpretation of the 34th section limited its application to State laws strictly local; that is to say, to the positive statutes of the State, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It has ever been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation; as for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the State tribunals are called upon to perform the like functions as ourselves; that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding that this section, upon its true intendment and construction, is strictly limited t

local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly the decisions of the local tribunals upon such subjects are entitled to and will receive the most deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed."

In Carpenter v. Providence Washington Ins. Co., 16 Pet. 495, decided at the same term with Swift v. Tyson, it was necessary to determine certain questions in the law of insurance. The court said: "The questions under our consideration are questions of general commercial law, and depend upon the construction of a contract of insurance, which is by no means local in its character, or regulated by any local policy or customs. Whatever respect therefore the decisions of State tribunals may have on such a subject, and they certainly are entitled to great respect, they cannot conclude the judgment of this court. On the contrary, we are bound to interpret this instrument according to our own opinion of its true intent and objects, aided by all the lights which can be obtained from all external sources whatsoever; and if the result to which we have arrived differs from these learned State courts, we may regret it, but it cannot be permitted to alter our judgment."

In Oates v. National Bank, 100 U. S. 239, we had before us the precise question, now under consideration.

That was an action by a National bank, located in Alabama, against a citizen of that State, upon a promissory note there executed and negotiated. It was contended that the decision of the Supreme Court of Alabama should be accepted as the law governing the rights of parties. We however held - referring to some of our previous decisions that the Federal courts were not bound by the decisions of the State courts upon questions of general commercial law. * We have already seen that the statutes of Alabama placed under the protection of the commercial law, promissory notes payable in money at a certain designated place, but how far the rights of parties here are affected by the rules and doctrines of that law is for the Federal courts to determine upon their own judgment as to what these rules and doctrines are."

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To this doctrine, which received the approval of all the members of this court when first announced, we have, as our decisions show, steadily adhered. We perceive no reason for its modification in any degree whatever. We could not infringe upon it in this case without disturbing or endangering that stability which is essential to be maintained in the rules of commercial law. The decisions of the New York court, which we are asked to follow in determining the rights of parties under a contract there made, are not in exposition of any legislative enactment of that State. They express the opinion of that court, not as to the rights of parties under any law local to that State, but as to their rights under the general commercial law existing throughout the Union, except where it may have been modified or changed by some local statute. It is a law not peculiar to one State, or dependent upon local authority, but one arising out of the usages of the commercial world. Suppose a State court, in a case before it, should determine what were the laws of war as applicable to that and similar cases. The Federal courts, sitting in that State, possessing, it must be conceded, equal power with the State court in the determination of such questions, must, upon the theory of counsel for the plaintiff in error, accept the conclusions of the State court as the true interpretation, for that locality, of the laws of war, and as the 'law' of the State in the sense of the

statute which makes the 'laws of the States rules of decision in trials at common law.' We apprehend, however, that no one would go thus far in asserting the binding force of State decisions upon the courts of the United States when the latter are required, in the discharge of their judical functions, to consider questions of general law, arising in suits to which their jurisdiction extends. To so hold would be to defeat one of the objects for which those courts were established, and introduce infinite confusion in their decisions of such questions. Further elaboration would seem to be unnecessary. The judgment is affirmed.

Mr. Justice Miller dissents.

IMPLIED COVENANT AS TO ANCIENT

LIGHTS.

PENNSYLVANIA SUPREME COURT, MAY 3, 1880.

RENNYSON'S APPEAL.

There is no rule of the English courts in regard to ancient lights which is final and conclusive in Pennsylvania. Defendant owned a house which had been erected more than twenty-one years, containing windows overlooking his land which were in rooms having other windows. He conveyed this house, making no agreement as to the right of light or air through the overlooking windows. Held, that defendant was entitled to erect a structure on his own land shutting off light and air from such windows.

The American doctrine as to light and air requires an express grant or agreement, unless a real and actual necessity exists, to vest a dominant tenement with such right.

BILL

ILL to restrain defendant from erecting a building on his own premises which would shut off windows in plaintiff's house. Defendant at one time owned two lots of land upon one of which was a house containing windows overlooking the other lot. This house had been erected for more than twenty-one years when he sold and conveyed the lot containing it to plaintiff's grantor. There was in the conveyance, or when it was made, no express grant or agreement on the part of defendant in reference to the windows or a right to light through them. There were other windows in the building affording light and air to the rooms in which the windows in question were. The Court of Common Pleas of Montgomery county denied the injunction and dismissed the bill, the following opinion being delivered by Ross, P. J., which was adopted by the Supreme Court:

Churles Hunsicker and E. Coppee Mitchell, Esq., for appellant.

B. M. Boyer, Esq., for appellee.

Ross, P. J. It is certainly true that the question presented by this record has not been definitely ruled in Pennsylvania; and it is equally true that the English authorities have not been recognized or adopted by our court of last resort. The doctrine of ancient lights, and the right to light and air, by prescription, has as yet no recognition in our Commonwealth. Hazlitt v. Powell, 6 Casey, 296; Wheatley v. Baugh, 1 id. 528; Hoy v. Sterrett, 2 W. 331.

In Wheatley v. Baugh, supra, Lewis C. J., says: "The Roman law, founded upon an enlightened consideration of the rights of property, declared 'that he who in making a new work upon his own estate, uses his right without trespassing either against any law, custom, title or possession which may subject him to any service toward his neighbors, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that change merely with a view to hurt others without any advantage to himself.

*

*

He may raise his house as high as he pleases, although by the elevation he should darken the light of his neighbor's house.' * These principles of the civil law are also the recognized doctrine of the common law. Birg v. Pope, 1 Cro. Eliz. 118; Parker v. Wendell, 19 Wend. 309; 2 id. 331; 18 Pick. 121. It is true that several nisi prius decisions introduced a modern doctrine in relation to ancient lights, in opposition to that held in the reign of Queen Elizabeth by all the judges in the Exchequer Chamber. 1 Cro. Eliz., supra. But the modern doctrine was never recognized by the King's Bench until the decision in 2 Saunders, 175, note 2. As that decision was since the American Revolution, after which the English courts ceased to have authority here, and is an anomaly in the law, the modern doctrine founded upon it has not been received as suitable to the condition of the country. 19 Wend. 309; 2 Watts, 331."

It is clear from this extensively cited authority that the English rule of new adoption comparatively does not prevail in Pennsylvania. Following this case, Lowrie, C. J., says, in Haverstick v. Sipe, 9 Casey, 370: "It has never been considered in this State that a contract for the privilege of light and air, over another man's ground, could be implied from the fact that such a privilege has been long enjoyed, or that on a sale of a house and lot, such a contract would be implied from the fact that such a privilege has been long enjoyed, or that on a sale of a house and lot such a contract could be implied from the character of the improvements on the lot sold and the adjoining lots."

There is, therefore, no rule of the English courts which is final and conclusive in Pennsylvania. The case is to be adjudged therefore either upon general principles applicable to our civilization, and in accordance with general public policy, or to be determined by the light cast by the decisions of our sister Commonwealths.

To adjudicate the question fully the proposition to be adjudged must be distinctly stated and clearly understood.

It is clear that Mr. Rozell, the defendant, is the owner of the servient tenement. The plaintiff purchased with his house and windows overlooking the lot of the defendant. The latter built, closing the windows of the former, and the question presented is, whether a servient tenement can close the windows on one side, and thus deprive the dominant tenant of the light and air which he desires from that side. I think I have stated the question fairly. It is new in Pennsylvania, and it is entitled to a broad ruling. The law should be clear on so important a topic, and this court will endeavor to rule so explicitly that all doubt will be at an end when its conclusion is affirmed or denied by the court of last resort.

The inquiry is by no means free from difficulty. This question has never been distinctly met and ruled in Pennsylvania; and in other States the rulings are conflicting. Haverstick v. Sipe, supra, is the case of a dominant tenant, and while in dictum it is decisive, is, upon the question involved by this record, no more than a dictum. Though largely cited, it does not definitely rule, as contended or as quoted. One case has been ruled in Pennsylvania, by Finletter, J., Kay v. Stallman, 2 Weekly Notes, 643. This stands alone, and is, I have no doubt, well ruled under the special facts of the case, which, when understood, demonstrate that the dominant tenement would have lost its light and air and also its means of access, if the erection upon the servient tenement had been maintained. This case, therefore, involves the question of necessity -an element which the master here has found is not involved by this record.

In other States two cases stand prominently forward. They conflict as to their conclusions; are to a great

extent irreconcilable upon general principles, and are pressed upon the court by the able contending counsel, who have made this case a specialty, and who by their intellectual exertions have awakened a vivid interest in the court. It cannot be denied that Story v. Odin, 12 Mass. 157, rules the point at issue, so far as the opinion of the court is concerned, squarely; for it does declare that the owner of a servient tenement may not interfere with the light and air of the owner of the dominant tenement. This clearly is the force and scope of the opinion, though the special facts of the case would have sustained the judgment on the ground of necessity. If it stood alone I should be governed by it, notwithstanding the wise dictum of Haverstick v. Sipe, supra, and the modifying influences of Keiffer v. Imhoff, 2 Casey, 445; 6 id. 293-299, as well as of Washburn on Easements, 589, 590, and authorities there cited. A careful examination of Maynard v. Escher, 5 Harr. 226 (a case miscited through error in the syllabus), 6 Casey, supra, of 14 Wr. 423, and the authorities cited by Agnew, J., will demonstrate that the broad ruling of Odin v. Story, supra, has not been adopted in Pennsylvania. Still, as has been said, a respectful regard for the Supreme Court of Massachusetts would induce me to follow its ruling, were there no other adjudicated cases. But the same tribunal, at a much later period, in Keats v. Hugo, 115 Mass. 208, adopts a different rule, and one which accords with my own views of this question, as affected by public policy and business interests. I understand this case to overrule Story v. Odin, or, at least, to explain it to such an extent that its right as a precedent fails. Story v. Odin was ruled in 1815 by Jackson, J., and it will be noticed that it is based upon English authorities, and that its reasoning is therefore weakened in Pennsylvania by what is said by our Supreme Court in Wheatley v. Baugh, supra.

Keats v. Hugo was ruled in June, 1874, and beginning with Story v. Odin reviews in analytical detail all the cases adjudicated in Massachusetts and some other States upon this question. This case rules that the easement of light and air is not implied from the grant of a house having windows overlooking land retained by the grantor. It declares that since Story v. Odin and the obiter dicta in 12 Mass. 220, 17 id. 443, 1 Sumner, 492, the cases have been more fully considered on principle, and that the tendency of judicial decisions in Massachusetts and most other States has been to deny the doctrine of acquiring a right to light and air by presumption or implication. Chief Justice Gray adds: "In no judgment of this court since Odin v. Story, has any right of light or air been upheld, except by express grant or agreement." In this most learned and exhaustive opinion the learned judge first notes that Odin v. Story is based upon English authorities; that neither in the opinion of the court nor in the argument of counsel is it suggested that a different rule may be required by the exigencies of a new country, with new wants, under a new and developing system of civilization and improvement, and that the facts of the case themselves did not require a decision upon the general principle. He then reviews the authorities at great length. Among these is Collier v. Pierce, 7 Gray, 18, which has the authority of Chief Justice Shaw to uphold it. I will not pause to cite the other authorities quoted in the opinion. Many of them are used to show the tendency of the courts to hold in this country, that easements of light, air, overhanging projections, are not implied in favor of the dominant as against the servient tenement. The principal case is strong, clear, and most emphatic, and its concluding reasoning is so sound that I cannot forbear quoting it in extenso. "By nature air and light do not flow in definite channels, but are universally diffused. The supposed necessity for their passage in a particular line or direction to any lot of land is created not Loy