did not give the jury correct instruction as to the law. equity of one who has borne more than his just share of a joint burden; and this equity having once arisen between co-sureties, neither the creditor, the principal, nor the death of a party can take it away. C., B., and M. on April, 1, 1879, gave a note to E. for paid the interest regularly until April, 1885, when he $1400 payable in one year, for money loaned to C., who failed in business. On April 1, 1886, M. paid to E. $700, or one-half of the note, with interest. E. subsequently indorsed the note to F. who brought suit against the makers. B. pleaded the Statute of Limitations; M. set up as a defence, that he had made an agreement with E. that if he, M., paid his one-half of the note, he should be released from any liability for the balance. This agreement E. denied. The jury, under instructions from the Court, rendered a verdict in favor of defendant B., and against C. and M. : Held, not to be error; the alleged agreement being without consideration, either by way of advantage to the plaintiff, or disadvantage to defendant. The same course of remark is applicable to the portion of the charge relating to the damages. The fifth error complained of, is the charge that the jury may consider the pain and suffering the plaintiff "has undergone and may undergo in the future." The expression is not felicitous, and there is a notable absence throughout the charge of the word compensation, which should always be made prominent in cases of this class. (See remarks on this subject in Collins v. Leafey, 23 WEEKLY NOTES, 268-9.) But the idea of compensation was clearly in the judge's mind and was fairly brought before the jury in the enumeration of the elements of the damages they should award if they should find for the plaintiff. These are stated by the learned Judge in the general charge to be the expenses of plaintiff's sickness, the loss of wages he has suffered and will suffer, and the pain and suffering he has un- Assumpsit, by Jacob M. Frantz, against John dergone and may undergo," and in the answer U. Charles, David Martin, and B. U. Charles to to plaintiff's fourth point, where the pain and recover the balance claimed to be due upon a suffering are expressly limited to that already promissory note drawn by defendants to the experienced and likely to be yet experienced." order of John B. Eshbach, and indorsed by him Taking all this together the idea of compensation, to plaintiff. Pleas non assumpserunt, payment, though not made as distinct and prominent as and the Statute of Limitations. is desirable, was fairly put before the jury, and it would be hypercritical and unjust to separate the single phrase "may undergo" from its context, and say that it gave the jury an unbridled license in the ascertainment of the damages, or left them without any guide at all as in R. R. Co. v. Adams (89 Pa. 29), and Collins v. Leafey (23 WEEKLY NOTES, 264). 66 Though open to criticism in the several points reviewed, the charge as a whole contained no substantial error. Judgment affirmed. Opinion by MITCHELL, J. Jan. '89, 377. L. L., Jr. Error to the Common Pleas of Lancaster County. Upon the trial, before LIVINGSTON, P. J., it appeared that the note in question, for $1400, for money loaned John U. Charles, was given by John U. Charles, David Martin, and B. U. Charles to John B. Eshbach on April 1, 1879, payable in one year from date with 51⁄2 per cent. interest. John U. Charles was the son-in-law of Martin. At the time the note was given Martin said that at the end of the year he would pay the note himself to Eshbach, and that his son-in-law, John U. Charles, would then owe the money to him. Martin, however, did not pay the note, and it was carried by Eshbach until January 17, 1888, when he indorsed it to Frantz, the plaintiff. John U. Charles paid the interest regularly May 22, 1889. until April, 1885, when he failed, In March, 1886, Eshbach and Martin met and had a conversation about the payment of the note. cording to plaintiff's testimony Martin said that he would pay the note that spring if he possibly could, but that he wanted to see B. U. Charles first. According to Martin, Eshbach agreed that if Martin would pay his half, he would release him and look to B. U. Charles for the other half. This was denied by Eshbach. Upon April 1, 1886, $770 was paid by Martin to Eshbach, and a receipt indorsed" for $700 on within note, and $70 interest for one year to April, 1885." Martin v. Frantz. An agreement to accept a smaller sum in satisfaction of a larger one, presently due, is without consideration, and cannot be enforced; and the actual acceptance of such smaller sum is not a good discharge of the debt, even as accord and satisfaction. When one promisor still continues liable, and is compelled to pay, the liability of the co-promisors for contribution will still remain, notwithstanding they may be discharged by the operation of the Statute of Limitations from their liability to the promisee. The right to contribution does not arise directly from the original instrument of joint obligation, but from the Ac The Court instructed the jury to render a verdict in favor of defendant, B. U. Charles, and charged, inter alia, as follows:— "It is claimed here by defendants that there is an accord and satisfaction in this case. In our judgment, accord and satisfaction do not arise | note as to him for six years more, unless he was here, are not presented by the evidence in the relieved by payment or otherwise. case. "What was David Martin's position? He never was released by the operation of the Statute of Limitations. He made a payment just before it would have become inoperative, that kept it alive as to him for six years longer. It required no new promise to bind him. At the time he paid the half, he was bound for the whole. Is there any other relief for him? He might have paid the whole at any time prior to the time he paid the $770; he might have paid it all then and brought suit against Charles for contribution. "Take David Martin's statement as entirely true, and we believe it is (though contradicted by Eshbach as to releasing). . "And this being our view of the law, we therefore instruct you to render your verdict for the plaintiff, for the amount of his claim, the balance of the note with the interest due thereon -the whole amount being $861.70. "If we are in error in our view of the law, defendants may move for a new trial, when the case may be argued before a full bench, so that the error may be corrected." Plaintiff requested the Court to charge :"The alleged promise or agreement testified to by David Martin, and some of defendants' witnesses, as having been made by John B. Eshbach, to the effect that he, David Martin, was to be relieved or discharged from all further liabil. ity on the payment of the half of the note in suit, being based on no valuable consideration, is not binding either on John B. Eshbach, or Jacob M. Frantz, the plaintiff in this case. Therefore said part payment is no defence to this suit which is brought to recover the balance, and the verdict of the jury must be for plaintiff and against David Martin and John U. Charles." Affirmed. Defendants requested the Court to charge :"(1) That the liability of David Martin, on the note in controversy, one of the defendants, would have been barred by the Statute of Limitations, and himself relieved if he had not made the payment, to wit, seven hundred and seventy dollars, on April 1, 1886;" and "(2) That if the jury believe, from all the evidence, that at the time said payment was made, to wit, seven hundred and seventy dollars, on April 1, 1886, the distinct understanding and agreement was that he was to be discharged and relieved from all other liability on said note, then he is relieved and the plaintiff cannot recover against him." Answer. Defendants' points refused. Six years bars recovery. If payment had not been made within six years statute would have been a bar, but payment was made within six years and statute did not become a bar, but continued the Verdict for plaintiff for $861.70 against John U. Charles and David Martin, and judgment thereon. Whereupon Martin took this writ assigning for error the portions of the charge, and the answers to the points, supra. Philip D. Baker, for plaintiff in error. William R. Wilson (Andrew M. Frantz with him), for defendant in error. June 28, 1889. THE COURT. It is too well settled to admit of discussion that an agreement to accept a smaller sum in satisfaction of a larger one, presently due, is without consideration and cannot be enforced (Brockley v. Brockley, 122 Pa. 1), and the actual acceptance of such smaller sum is not a good discharge of the debt, even as accord and satisfaction. (Mechanics' Bank v. Euston, 11 WEEKLY NOTES, 389.) It is clear, therefore, that the agreement relied on by the defendant below was without consideration in the way of benefit accruing to the plaintiff, and it must fail as a defence unless it imposed some burden or disadvantage on the defendant. All that is claimed for it in this regard is that it allowed the Statute of Limitations to run in favor of the co-surety, B. U. Charles, and thus deprived the defendant of his right to contribution. The authorities, however, are quite uniform that this result does not follow. "The right of action for contribution does not arise until payment of more than a due proportion, and hence the Statute of Limitations does not begin to run until then." (De Colyar on Guaranties, 354, Morgan's Am. ed.; and see Parsons on Contracts, pp. 33-37, and cases there cited.) The precise point involved here has been expressly decided by several Courts of the highest authority. Thus in Peaslee v. Breed (10 N. H. 489), one of two joint makers of a note was protected against the holder by the Statute of Limitations, while the other, through payments made by himself, remained liable. The latter having paid, was held entitled to recover of the former his share for contribution, PARKER, C, J., saying, "We are of opinion that the plaintiff is entitled to recover for the amount paid after the period when no action could have been sustained directly against the defendant by the payee of the note." In Boardman v. Page (11 N. H. 438) the rule is thus stated: "When one promisor still continues liable . . . and is compelled to pay. . . . the liability of the co-promisors for contribution will still remain, notwithstanding .... they may be discharged by the operation of the Statute of Limitations, from their liability to the promisee." In Wood v. Leland (1 Metc. (Mass.) 387) it was said by Chief Justice SHAW, "Defendants contend that as they could not be held responsible to the obligee after the year, so they would not be liable for contribution to a surety after that time. But the Court are of opinion that the Statute of Limitations cannot be so applied. It may well be admitted that the Statute of Limitations would be a good bar to an action by the obligee. . . . but the right of action by the surety for contribution does not accrue at the breach of the bond, but upon his payment of the money pursuant to that breach." And in Camp v. Bostwick (20 Ohio St. 347) it was held that the right to contribution does not arise directly from the original instrument of joint obligation, but from the equity of one who has borne more than his just share of a joint burden, and "this equity having once arisen between co-sureties,' says McILVAINE, J., "neither the creditor, the principal, the Statute of Limitations, nor the death of a party can take it away." It is thus clear on the authorities that whatever rights of contribution plaintiff in error may have, arise out of his payment of more than his due proportion of the joint obligation; and will date from such payment, entirely unaffected by the fact that the Statute of Limitations has barred any direct liability of his co-surety to the creditor. The agreement relied on being therefore without consideration, either by way of advantage to the plaintiff or disadvantage to the defendant, was not a valid defence, and the learned Judge was right in directing a verdict for plaintiff. Judgment affirmed. Opinion by MITCHELL, J. H. C. O. May '89, 9 & 10. Vacation of roads-Report of viewers-Act of Viewers appointed under the Act of June 13, 1836, to vacate parts of a public road, reported that the road had become useless, dangerous, inconvenient, and burdensome, and should be vacated, and further "that said vacation shall take effect from the time when the Pennsylvania Railroad Company shall have completed, ready for use, including approaches thereto, an overhead bridge over the tracks of its road," etc. The Court below set aside the report as conditional, and therefore, illegal and invalid: Held, to be error. The record was regular on its face, and the report was not conditional in the objectionable sense of Road in Lathrop Township (84 Pa. 126) and Road in O'Hara Township (87 Id. 356). to open a road in the first instance, and those to vacate an existing road because it has become useless, inconvenient, two branches, the closing of the old way, and the opening or burdensome. The latter is usually a proceeding with of a new one in its stead. It is of practical importance that the first branch should not be proceeded with so far in advance of the second as to leave the public even for a brief interval without any road at all. The provision of section 24, of the Act of June 13, 1836, that "whenever the whole or any part of a road shall be changed or supplied, the same shall not be shut up or stopped, until the road laid out to supply the place thereof shall be actually opened and made," necessarily implies an interval of time between the decree of vacation, and the order to close in fact. In cases like the present, the direction as to the time of actual closing, is a matter under the entire control of the Quarter Sessions. Certioraris to the Quarter Sessions of Dauphin County. Petitions were filed by citizens of Londonderry Township asking for the appointment of viewers to vacate parts of a public road lying between Canal and Allen streets, and between Allen and Northumberland streets, in the village of Port Royal. Viewers were appointed, who reported in each case that the parts of the road sought to be vacated had become useless, dangerous, inconvenient, and burdensome, and should be vacated; and further that said vacation shall take effect from the time when the Pennsylvania Railroad Company shall have completed ready for use, including approaches thereto, an overhead bridge over the tracks of its road, on Burd Street, in said township and village, and near to the road hereby vacated." After the filing of the reports, a petition was filed, in one case only, for a revocation of the order appointing viewers. No exceptions were filed, nor a petition for a review. The Court refused to confirm the reports, and set aside the proceedings, SIMONTON, P. J., saying: "The report of the viewers in this case contains upon its face a fatal error. The viewers report that they are of the opinion that the road in question has become useless, dangerous, inconvenient, and burdensome, and ought therefore to be vacated. The said viewers further report that said vacation shall take effect from the time when the Pennsylvania Railroad Company shall have completed, ready for use, including approaches thereto, an overhead bridge over the tracks of its road on Burd Street in said township and village and near to the road hereby vacated.' "This leaves the finding of the jury conditional, and renders it impossible for the Court to confirm the report for the reasons given In re There is a substantial distinction between proceedings | Road in Lathrop Township (84 Pa. State, 126). The In that case the condition which was held fatal by | O'Hara Township (87 Id. 356). Both of these the Supreme Court was in the decree of the cases were decided on technical grounds and Court below, and not in the report of the view- should not be held binding except where the ers, while in this case it is in the report, but the same or similar technical defects exist. Without confirmation of the report would carry it into adverting to minor differences between those the decree, and we think that the cases are es- cases and the present, it is sufficient to note the sentially parallel. The Supreme Court say: substantial distinction between proceedings to The conditional confirmation suspends the open a road in the first instance, and those to effect, and puts the record and effect of the de- vacate an existing road because it has become cree in abeyance, until payment of the damages, "useless, inconvenient or burdensome." an act necessarily done in pais. . . . Now latter is usually, as in the present case, a prowhat guide has the clerk for entering the whole ceeding with two branches, the closing of the old proceedings on the record? Is he to determine way, and the opening of a new one in its stead. the fact of payment?' So here, how is the clerk It is of practical importance that the first branch to determine when the Pennsylvania Railroad should not be proceeded with so far in advance Company shall have completed, ready for use, of the second as to leave the public, even for a including the approaches thereto, an overhead brief interval, without any way at all. This inbridge from the tracks of its road as provided in convenience has been guarded against by the the conditional report. Act of 1836 itself, section 24 of which provides that "whenever the whole or any part of a road shall be changed or supplied, the same shall not be shut up or stopped, until the road laid out to supply the place thereof shall be actually opened and made." "The road laws certainly make no provision for such a conditional finding as that contained in this report, and, as said in the case above cited of the decree, the report in this case is therefore illegal and invalid, and confirmation must therefore be refused and the proceedings be set aside. See, also, In re Road in O'Hara Township (87 Pa. St. 356)." Petitioners then took this writ assigning this action of the Court for error. Louis W. Hall and Francis Jordan, for plaintiffs in error. The cases cited by the Court below are not in point. Mill Creek Township v. Reed, 5 Casey, 195. The viewers were authorized to report as they did because the eighteenth section of the Act of June 13, 1836, relating to roads, highways, and bridges (2 Purd. Dig. 1501, sec. 33), authorizes viewers to change and vacate "the whole or any part of any private or public road which may have been laid out by authority of law, whenever the same shall become useless, inconvenient or burdensome;" and the 24th section of the same Act is that: "Whenever the whole or any part of a road shall be changed or supplied, the same shall not be shut up or stopped until the road laid out to supply the place thereof shall be actually opened and made." (2 Purd. Dig. 1501, sec. 38.) James I. Chamberlin, for defendants in error, relied upon the cases cited in the opinion of the Court below, and Newville Road Case, 8 Watts, 176. June 28, 1889. THE COURT. The learned Court below seems to have felt constrained to set aside these proceedings because the findings of the viewers were conditional, and, therefore, illegal and invalid, under the cases of Road in Lathrop Township (84 Pa. 126), and Road in This necessarily implies an interval of time. between the decree of vacation and the order to close in fact, for it will rarely happen that the new way will be actually constructed until it is made certain that the old will be vacated and the new accepted as a substitute. Examining the reports of the viewers in the light of this provision of the statute, we do not find that they are conditional in the objectionable sense of the cases cited. The finding that the road "has become useless, dangerous, inconvenient, and burdensome, and ought therefore to be vacated" is certain and absolute, and the further report that the said vacation shall take effect when the overhead bridge on Burd Street shall be ready for use, does no more than identify the new road which is to be substituted for the one vacated, and put into express words the direction as to the time of actual closing, which would otherwise have followed as an implication of law from the section of the Act of 1836 above quoted. This is a matter under the entire control of the Court by withholding or postponing the issue of the order for vacating until satisfactory evidence is presented that the time fixed alike by the report of the viewers and by the statute has arrived. There is, therefore, nothing in this provision of the reports which affects the regularity of the proceedings, or which need prevent the confirmation of the reports and the making of decrees of vacation of the roads as recommended therein. It is not intended by our opinion or action in these cases to infringe in any way upon the discretionary control of the Court below over proceedings of this nature. In one of the cases Error to the Common Pleas of Schuylkill County. Case, by John M. Crosland against the Borough of Pottsville, to recover damages for injuries to his property and person. there were no exceptions of any kind filed to the Held, further, that the borough officers should properly proceedings, and in the other no formal excep- have turned their attention to B., who was the offending tions but only a petition to revoke the appoint-party, and have compelled him to abate the nuisance which he had set up and maintained. ment of viewers. The learned Judge in setting aside the proceedings put his reasons on the record formally as part of his order, and the case has been argued by counsel for both appellant and appellee as if the reasons were regularly before us for review. We have assumed, therefore, that the Court as well as the parties desired a decision on the case as thus presented. In reversing the orders, therefore, the extent of our decision is that the proceedings are regular on their face and the reasons assigned on the record for setting them aside are not legally sufficient. If any other objections to confirmation exist, the Court as to them will be entirely untrammelled by our present action. April 19, 1887. Crosland v. Borough of Pottsville. Nuisance-Abatement of-Trespass-Drains Boroughs. On the trial, before PERSHING, P. J., the following facts appeared from the plaintiff's evidence: In 1872 D. P. Brown who owned real estate on the west side of Centre Street in the borough of Pottsville, obtained permission from Crosland, who was the owner of a lot of ground about 150 feet below Brown's, but on the east side of the street, to run a drain to drain his surface water only through the latter's premises to the Schuylkill River. It appeared that no sooner had Brown constructed his drain down through and crossing Centre Street, the main thoroughfare of the borough, and through Crosland's premises, that he not only connected the same with an old coal shaft or abandoned mine working about forty feet deep, that he was using as a cesspool, but also sold rights to other inhabitants and property. owners in his neighborhood to connect their drains with the one so constructed by him. Crosland subsequently built a row of frame dwelling houses on his premises, Brown's drain running directly through the basement or cellar When a person who is entitled to a limited right in of one of them. These dwellings were rented real estate under a grant from another exercises the right from time to time by Crosland and occupied by in excess so as to produce a nuisance, the grantor may his tenants. As early as 1875 Crosland disabate the exercise of the right to the extent of the nui-covered that, instead of the drain being used for sance. If the nuisance cannot be abated without obstruct ing the right altogether, the exercise of the right may be entirely stopped until means have been taken to reduce it within proper limits, but in such case the grantor proceeds at his peril and takes the risk of being able to show that the thing complained of was in fact a nuisance. If he errs in judgment he is answerable in damages, and if a breach of the peace is involved he is liable to indictment for the result. C. being the owner of real estate granted to B. the right to run a drain across his premises for surface water only. B. made the drain, running it under a street and subsequently connecting it with his cesspool and that of other parties whereby a nuisance was created on the premises of C. In order to abate this nuisance C. disconnected the drain on his premises and plugged up the pipe, whereby the sewage was forced up into the street. The officials of the borough thereupon reconnected the drain renewing the nuisance on C.'s premises, and C. again disconnected the same. The borough officials again attempted to connect the drain, C. endeavored peaceably to prevent them and was thereupon arrested and committed to the lock-up. In an action by C. against the borough to recover damages, the Court instructed the jury that C.'s remedy was against B. and that the verdict must be for defendant. On writ of error: Held, that this instruction was erroneous; that C. had been justified in the course he had pursued, and that the borough authorities had no right to open the drain through his premises. drainage of surface water only, as agreed upon between him and Brown, it was used as a sewer or drain for Brown's cesspool and also as a drain for Brown's neighbors. The tenants of the dwellings also made complaint, and on May 26, 1880, after Crosland had exhausted every remedy known to him to disinfect his dwellings and make them habitable, and after having verbally notified Brown, he served a written notice on Brown to cut off and remove his drain or sewer altogether. Brown paid no attention to these notices. Crosland's dwellings became permeated with noisome sewage and cesspool smells from this drain. On May 10 or 13, 1881, almost a year after the first and six weeks after the second notice to Brown, Crosland dug down about eleven feet from the curbstone, on the west side of the street, and disconnected the pipe that led to his premises, secured the disconnected ends by plugging them tightly and mailed Brown a notice of what had been done. The result of this was that the water or sewage thereafter oozed or was forced up on the street at the point where Crosland had disconnected the pipe. It remained in this con |