amount of two promissory notes discounted by the County National Bank of Clearfield, plaintiff below, one of said notes amounting to $1,975; the other to $169.04. The defense set up was that the notes in suit were renewals of notes discounted by the bank as early as 1866; that prior to the discount of the original note, the defendant left with the bank certain notes of one A. C. Finney, indorsed by Samuel Mitchell, to the amount of $4,000, the longest of which notes had thirty months to run; that these notes were left with the bank by an arrangement made between the defendants below and James T. Leonard, president of the said bank, by which arrangement the bank was to hold these Finney notes as collateral security for discounts which the bank was to give the defendant. Shortly afterward the bank discounted notes of the defendant, and continued to discount notes from time to time. The notes generally were discounted without an indorser. It was contended that the notes in suit were but renewals of this long series of discounts. It is to be observed, however, that each of the notes in suit has upon it as indorser the name of William A. Wallace, a gentleman of well-known pecuniary responsibility.

It is a singular circumstance that notwithstanding the notes alleged to have been deposited as collateral were made and indorsed by responsible parties, no trace of them appears upon the books of the bank; there is no very clear proof as to their payment; nor is there any evidence that the defendant, who was evidently in a position to need the money, ever made any demand upon the bank for the proceeds, or even any inquiry about them.

There was evidence sufficient, however, of the deposit of the collaterals to carry the case to the jury. Upon the trial the defendant claimed not only that the notes in suit were paid by the collateral, but that he was entitled to a certificate for the balance due him upon the collateral, after the payment of his notes. The court below allowed the claim so far as it was a defense to the notes, but held that the surplus was barred by the statute of limitations. The jury found a verdict in favor of the defendant, who sued out this writ, and has assigned for error the instructions of the court upon the statute of limitations.

We are of opinion that it was error to apply the statute. It is a settled rule of law that where a deposit is made in a bank, the statute does not begin to run until after demand made. It is sufficient to refer to two of the later cases, viz.: Finkbone's Appeal, 86 Penn. St. 368, and McGough v. Jamison, 107 id. 336. It is true the defendant was not technically a depositor of money to be drawn out on his check, but we are unable to see any substantial difference between such case and the one in hand. He was a customer or dealer with the bank; was having a line of discounts, and the notes in controversy were deposited as collateral to such discounts. What was the duty of the bank when the collateral notes were paid? It was to deposit or carry the proceeds to the credit of the defendant's account. He would then occupy the position of any other depositor. The theory of the defense was that the collateral notes were paid; indeed, it is only upon this theory that he would have any defense to the notes in suit, or claim to a certificate. If then the notes were paid and the bank did its duty by carrying the

proceeds to his credit, in what respect is his portion different from that of any other depositor?

If, on the other hand, the bank committed a breach of duty by not applying the proceeds of the collateral notes to the defendant's account or to his credit, what is the result? The bank cannot take advantage of its own wrong. It was the pledgee of the collateral notes. The latter were pledged for the payment of the note discounted and to be discounted by the bank. If the collateral notes have been paid, the proceeds are and must be held for the same purposes as the notes themselves had been previously held. The change in the nature of the collateral by their conversion into money can make no essential difference. It is well settled that mutual demands do not of themselves extinguish each other. The notes discounted by the bank for Humphreys have not been paid in point of fact. The bank might have applied the proceeds of the collateral notes to their payment, but it did not. It might have called upon Humphreys to redeem the pledge, but it did not; not having exercised any such right, it holds the collateral, whether it be notes or money, as pledgee for Humphreys' notes discounted. Those notes are still unpaid. Can it be doubted that Humphreys tendered the amount of his notes to the bank instead of waiting to be sued, he could have demanded the return of his collateral? The statute of limitations would have been no answer to such a demand. "If the pawnee does not choose to exercise his acknowledged right to sell, he still retains the property as a pledge, and upon tender of the debt, he may, at any time, be compelled to restore it; for prescription, or the statute of limitations, does not run against it." Kemp v. Westbrook, 1 Ves. 278; Jones Bailments, 84.

We are of opinion that it was error to apply the statute in this case, and for this reason the judgment must be reversed. The verdict was in favor of the defendant, which of course defeated a recovery upon his notes discounted by the bank. He may upon another trial get a certificate for the balance he claims to be due on the collaterals or he may fail in this and have to pay his notes besides. But he has a right to take this risk.

Judgment reversed and a venire facias de novo awarded.

HUMPHREY V. IRVIN ET AL.

October 4, 1886.

WATER-COURSE-CONTINUING NUISANCE

DAMAGES.

C., a land-owner, brought suit against D. and others, for having maintained a dam, and thus unlawfully interfered with the natural flow of water in a river bounding the land of C. Upon the trial C. offered to prove that after suit brought, D. and his fellow defendants had persisted in continuing, increasing and strengthening the obstructing dam. Held, as the alleged nuisance was of a continuing character, and C. had given the requisite notice under the act of May 2, 1876-P. L. 95- the evidence was admissible.

Error to the court of common pleas of Clearfield county.

Suit was brought by Humphrey against Irvin et al., to recover damages for the backing of water on Humphrey's land. The declaration was in the usual form, and claimed both general and special dam

ages. The plea was not guilty. Defendants were duly notified by plaintiff that he proposed to claim damages up to the trial of the suit. The trial came on, and a verdict was rendered for the defendants, and judgment was entered on the verdict. Plaintiff then took a writ of error, assigning for error various rulings of the court in the course of the trial, as also the instructions to the jury contained in the charge and in answer to the plaintiff's points.

The first and tenth specifications of error were as follows:

"1. The court erred in overruling plaintiff's offer, which offer and ruling of the court are as follows:

"Plaintiff offers to show by the witness on the stand and by other witnesses, that between the time the suit was brought and the present time, the piers and the dam and other obstructions in the stream were increased in size and height and strength by the defendants, whereby the amount of back water was increased, and the damage was increased to the plaintiff, for which he claims to recover in this suit.'

"Defendants' counsel object for the following reasons: '

"First. That it is incompetent for plaintiff to show a new cause of action not existing at the time of the bringing of this suit."' "Second. The offer is incompetent and irrelevant.'

"Objections sustained. Evidence excluded. Plaintiff's attorneys except, and pray that a bill be sealed, which is done.""

"10. The court erred in refusing to affirm plaintiff's third point. Said point was as follows:

"If said dam or obstructions which were maintained by the defendants caused back water on plaintiff's land, in any degree, in the ordinary stages of water or freshets which are to be anticipated, then such dam or obstructions would be illegal, and plaintiff would also be entitled to recover from defendants such damages as arose from said dam or obstructions in the extraordinary freshets that sometimes occur.' "The court answered as follows:

"That point is refused. I do not think that is the law.'"

McEnally & McCurdy and Murray & Gordon, for plaintiff in error. Our quotations are from these books: 1 Suther. Dam. 9, 10, 47, 61; Pastorius v. Fisher, 1 Rawle, 27, 28, 29; Alexander v. Kerr, 2 id. 83; Bridge v. Coal Co., 4 id. 10; Bell v. McClintock, 9 Watts, 119, 120, 121; Ripka v. Sergeant, 7 W. & S. 9; Cusebeer v. Mowry, 5 P. F.S. 419; Purd. 2002, Act of May 2, 1876; 1 Bright. Dig. 837, pl. 379, 381; 3 id. 3215, pl. 63, 64; R. R. Co. v. Berry, 18 P. F. S. 272; Fawcett v. Fawcett, 14 Norr. 376.

Orvis & Snyder, for defendants in error.

STERRETT, J. This action on the case was brought against the widow and heirs of John Irvin, deceased, defendants in error, to recover damages for injuries alleged to have been done to plaintiff's land by their mill-dam.

In the declaration it is averred that on July 30, 1875, and between that time and the bringing of this suit the defendants wrongfully, injuriously and unlawfully made, kept and continued and caused to be made, kept and continued across the river at a point about three miles,

more or less, by the course of said river below plaintiff's land, a dam of great length, width, etc., and by reason of said dam, so made, kept and continued by defendants, the water of said stream during the time aforesaid was raised at divers times to a great height, viz., the height of ten feet upon plaintiff's said land above what the waters of said stream would have been if left to flow freely in its natural channel, free from such artificial obstructions. Whereby a large quantity of plaintiff's land was overflowed, washed and greatly damaged and the fences and other improvements partly washed away, and in other respects greatly injured and destroyed, the rafting ground of plaintiff on said land greatly damaged, interfered with and depreciated in value, and said plaintiff's business of farming, lumbering, etc., so interfered with and injured that plaintiff was deprived of great profits and subjected to large outlays, expenses, etc.

The injuries thus complained of being in the nature of a continuing nuisance, plaintiff gave the requisite notice, and under the act of May 2, 1876 P. L. 95 claimed the right to prove and recover damages for maintenance of the alleged unlawful structure. He accordingly made the offer, the rejection of which forms the subject of complaint in the first specification.

When we consider the old law, the mischief and the remedy, it is very evident the object of the act last referred to, was to avoid multiplicity of suits, by giving the plaintiff in this class of cases the right to recover damages up to the day of trial. Formerly damages of the kind complained of, suffered between the impetration of the writ and time. of trial, could only be recovered in a second suit. This was considered a defect in the law which the act was intended to remedy. It is a mistake to suppose the offer was to prove a new cause of action not existing when suit was brought. The cause of action then was and still is an unlawful interference with the natural flow of the water, through plaintiff's land, by means of a dam, theretofore maintained by the defendants. The offer was to prove that after suit brought they persisted in continuing, increasing and strengthening the obstruction which constituted the alleged nuisance. We think, therefore, the plaintiff was entitled to give in evidence the condition of the dam and obstructions during the whole period of time, including all such additions, changes and repairs as were made by defendants.

It has also been suggested that if there was technical error in excluding the offer, the plaintiff was not thereby prejudiced, because the result of the trial shows he had no cause of action at the time suit was brought, and he cannot be permitted to recover for a subsequently accruing cause of action. This position is more plausible than sound. It is predicated of the assumption that there was no error in the course of the trial, which may have prevented recovery for a good cause of action existing when suit was brought. At least one such error, we think, was committed by the refusal of the court to affirm plaintiff's third point. In that point the learned judge was requested to charge: "If said dam or obstructions maintained by defendants caused back water on plaintiff's land in any degree in the ordinary stages of water or freshets which are to be anticipated, then such dam or obstructions

would be illegal, and plaintiff would also be entitled to recover from defendants such damages as arose from such dam or obstructions in the extraordinary freshets that sometimes occur." As applicable to the facts of the case this was a correct statement of the law, and the proposition should have been affirmed. In Pastorius v. Fisher, 1 Rawle, 27, it is said: "In an action for overflowing plaintiffs' land by the erection of a dam on defendant's land, in which the nature and extent of the alleged injury are specially described in the declaration, the plaintiff is entitled to a verdict for nominal damages though he fail to prove the particular injury complained of or any other actual injury.' In delivering the opinion of the court in that case, GIBSON, Ch. J., says: "The law implies damages from flooding the ground of another though it be in the least possible degree and without actual prejudice." "But where the law implies the injury it also implies the lowest damages except in cases of personal injury, where damages are given not to compensate but to punish. Here, however, it is said that plaintiff undertook to prove special damage and therefore staked his case on the event. But surely an attempt to prove an injury beyond what the law implies is not necessarily a relinquishment of damages for every thing short of the whole case. Where the plaintiff goes for special damage, he must lay it, else he should not give evidence of it. But the converse of the rule does not hold, that having laid it he must prove it, or fail altogether. It would be neither reasonable nor just to compel him to elect between real and nominal damages, or to refuse compensation as far as substantial cause of action has been proved. The action may be brought to try the right, and the verdict being conclusive, would stand in the way of a recovery for a substantial injury, if any were suffered afterward." In Casebeer v. Mowry, 55 Penn. Št. 49, the same principle is thus stated: "One man cannot with impunity invade the premises of another by a nuisance because the damage may be inappreciable. The law allows the recovery of nominal damages, at least, as evidence of plaintiff's right." In support of plaintiff's proposition other cases may be cited among which are: Alexander v. McClintock, 2 Rawle, 83; Lehigh Bridge Co. v. Lehigh Coal and Navigation Co., 4 id. 10; Bell v. McClintock, 9 Watts, 119. The last two cases are authority for the position, that where the loss happens exclusively from an act of Providence the defendant is not liable; but where his negligence or fault concurs with the act of Providence, he is answerable for damages.

It follows from what has been said that the first and tenth specifications of error are sustained; and so far as the remaining specifications are involved in either of these errors, they are also sustained.

The remarks of the learned judge complained of in the third, ninth and thirteenth specifications were calculated to create an erroneous impression in the minds of the jury, but standing alone, they would not warrant reversal of the judgment.

Judgment reversed and a venire facias de novo awarded.