(1) If a corporation abuses its privileges, of Delaware County to tear down and rebuild a whether municipal or private, and encroaches county bridge without any action on the part of upon the rights of individuals, the Court has authority to interfere by way of injunction.

Hill v. Commissioners, 1 Parsons, 507.
Wharton et al. v. School Directors, 6 Wr. 362, etc.
(2) Because it is a strong and mischievous case
of pressing necessity.

Minning's Appeal, 1 Norris, 373.
Jarden v. R. R. Co., 3 Wh. 512, etc.
Rhea v. Forsythe, 1 Wr. 506.

the grand jury and the Court of Quarter Sessions. It is not, however, a taxpayer's bill. It was filed by a property owner, whose only complaint is that the commissioners are erecting the bridge in a manner that will be injurious to his property rights. The learned Judge below evidently saw this difficulty when he said in his opinion: "It is contended, however, that as this is not a tax

Big Mountain Improvement Co.'s Appeal, 4 P. F. payer's bill, the question of authority is not S. 372.

Appeals of Sheaffer et al., 4 Out. 379.
Berlew et al. v. Electric Illuminating Co., 1 Penna.
Co. Court Rep. 651.

(3) Because the defendants without authority of law are changing and widening the public road and bridgeway on the plaintiff's land where the same was never laid out and has never been before used, to the great damage of the plaintiff, and without compensation or any assessment of damages or security therefor.

Keene v. The Borough of Bristol, 2 Casey, 46, etc.
Constitution of Penna. 1874, Art. XVI. sec. 8,
Buckalew, 252, note.

Miller v. Penna. R. R. Co., 2 Ches. Co. R. 533.

raised. While it may be true that the question
issue between the parties, it is incidental to it.
of authority to build the bridge is not the direct
The bill prays for relief from an alleged unlawful
act, and Wilhelm's Appeal decides (79 Pa. 120)
that where there is jurisdiction of the subject
matter, equity may determine any incidental
The plaintiff
question necessarily involved.
charges the commissioners with an unlawful in-
terference with this property. He may therefore
show a want of authority to do the act complained
of."

Patent v. P. & R. R. R. Co., 14 WEEKLY NOTES, 545. conception of the nature and effect of the plain

New Brighton v. U. Presbyterian Church, 96 Pa.
St. 339.

Pusey v. Allegheny, 10 WEEKLY NOTES, 561.
Scranton City Guard Assn. v. Scranton, 1 Penna.
County Court Rep. 550.

Penna. Ř. R. Co. v. Duncan, 17 WEEKLY NOTES, 193.
County of Chester v. Brower, 20 Id. 431.

(4) Because an injunction will be granted to prevent disturbance and interference with an easement, and the plaintiff is likewise entitled to one to protect his riparian rights and the full enjoyment of his property rights.

Rhea v. Forsythe, 1 Wr. 506, etc.
Johnson's Appeal, 14 Norris, 78, etc.
Buck Mountain Co. v. Lehigh Coal & Nav. Co., 14

Wr. 100.

(5) The right to the flow of running water without diminution or alteration, being common to all those through whose land it flows, any unauthorized interference with the use of the water, to the prejudice of one entitled to its use, is the subject of an action for damage and may be restrained by an injunction.

Coulson & Forbes on Law of Waters, page 111. (6) It was not necessary the plaintiff should show special damage to entitle him to the injunction.

This paragraph is evidently based upon a mistiff's bill. We do not understand it to pray for relief from an alleged unlawful act," nor to charge the commissioners "with an unlawful interference with his property." On the contrary, commissioners. There is no averment in the bill it charges no unlawful act on the part of the that they are proceeding without proper authority to rebuild the bridge, and without such averment officials like county commissioners can only be a taxpayer's bill would be demurrable. Public restrained in their official acts when it appears that they are proceeding without lawful authority. This is the principle which underlies Sharpless v. The City of Philadelphia (21 Penna. 147), and the line of cases following it. The building of county bridges is one of the recognized duties of county commissioners. There is no averment that these commissioners are proceeding without authority of the grand jury and Court of Quarter Sessions. We cannot therefore, as before stated, pass upon the question of their power to act without such sanction. Nor would it help the matter were we to permit the bill to be amended and by a convenient fiction treat it as taxpayer's bill, for it would still lack the

a

essential averments. It would have to be reconstructed from the foundations to give it any value as a tax-payer's bill. This cannot See Hacke's Appeal, 5 Out. 245. It needs Penna. Coal Co. v. Sanderson, 18 WEEKLY NOTES, be done at this stage of the case.

18.

March 5, 1888. THE COURT. If this had been a taxpayer's bill with the proper averment, we would have had before us in an orderly way the question of the power of the commissioners

no authority to show that the county commissioners cannot be controlled in their discretion in building a county bridge at the application of a private citizen. This cannot be done either in the size of the bridge, its plan, or the location of its piers or abutments. The Master finds that

this bridge is located wholly on the old road-bed | quently sold to B. A. and B. with C., the agent of and within its lines. It does not touch the land B., met at the office of the association to arrange for a of the complainant. If it causes injury to the release of the lot from the lien of the mortgage, and latter by interfering with his water rights, he has it would be necessary to pay for that purpose. B. had his remedy by an action on the case. The right placed the total purchase-money in the hands of his to compensation for what are usually called con-agent C., and directed him to pay the sum so mentioned to the secretary. sequential injuries, that is to say, where property Instead of receiving the is injured without being actually taken, is given itor of the association, and on the following day C. money the secretary directed C. to pay it to the solicby sect. 8 of Article XVI. of the Constitution. accordingly handed to the solicitor his check for the We do not agree, however, with the learned amount. For two months thereafter C. had sufficient Judge below, that a jury could be appointed to funds in bank to meet the check, but the solicitor failed assess the damages. This can only be done to present it for payment until nearly three months after it had been received. Meantime C. had become insolwhere property is actually taken. We have vent and had misappropriated the money received by therefore held that inasmuch as the Legislature him from B. The latter knew nothing of the above has provided no remedy for the assessment of transactions, but believed that the check had been such damages, an action on the case will lie to duly presented and paid. A sci. fa. having issued enforce the right conferred by the Constitution. upon the mortgage B. defended as terre-tenant and filed an affidavit of defence setting up the above facts: (Duncan v. Penna. Railroad Company, 111 Pa. Held, that the affidavit was sufficient to send the 352; County of Chester v. Brower, 20 WEEKLY case to a jury. NOTES, 431.) Nor do we agree with the Court below that the complainant is entitled to his injunction until the county shall make compensation for the injury. The only difference between the late Constitution and the present one in this respect is that in the former compensation was given only for property taken; in the latter compensation is given for property taken, injured, or destroyed. In either case compensation must be made or secured before such taking, injury, etc. It has been repeatedly held that the power of taxation in a municipal corporation is sufficient security for property taken by such corporation. Hence it logically follows that it is sufficient for property injured. These authorities are too

were informed by the secretary of the amount which

familiar to need citation.

While the facts intended to constitute an affidavit

of defence need not be presented in any prescribed form, they must be so distinctly stated, that the nature and character of the defence will clearly appear. In passing upon the sufficiency of an affidavit every material and unequivocal averment of fact must be accepted as verity.

Error to the Common Pleas of Delaware

County.

Scire facias sur mortgage, by the Home Building and Loan Association against Oliver Troth, mortgagor, and Robert Kilpatrick, terre-tenant.

The terre-tenant filed an affidavit of defence, the substance of which is set forth at length in the opinion of the Supreme Court. The Court made absolute a rule for judgment for want of a sufficient affidavit of defence, and entered judgment accordingly; whereupon the terre-tenant took this writ, assigning for error the decree of

GORDON, C. J., TRUNKEY and GREEN, JJ., the Court.

Checks-Acceptance of-Prompt presentation of
-Affidavit of defence law-Practice.

It is well settled that, in the absence of an agree ment to the contrary, a check or promissory note of either a debtor or a third person received for a debt, is merely conditional payment, that is, satisfaction of the debt if and when paid; but the acceptance of such check or note implies an undertaking of due diligence in presenting it for payment, and if the party from whom it is received sustains loss by want of such diligence it will be held to operate as actual payment.

A. owned certain lots subject to a mortgage held by a building association, one of which lots he subse

William B. Broomall, for the plaintiff in error. Accepting a check or draft implies the undertaking of due diligence in presenting it for payment, and if the drawer sustains loss for want of such diligence, it will be held to operate as payment.

Freeholders of Middlesex v. Thomas, 5 C. E.
Green, 39.

McIntyre v. Kennedy, 5 Casey, 450.
Ward R. Bliss, for defendant in error.
The law will not permit Kilpatrick, the prin-
his agent. In addition, the secretary of the asso-
cipal, to take advantage of the fraud of Beeby,
ciation plaintiff had no power in the premises to
bind it.

Johnston v. B. A., 14 WEEKLY NOTES, 247; 8 Out.
394.

Penna. R. R. Co.'s App., 30 Smith, 290.
Moshannon Co. v. Sloan, 13 Out. 532.
Selden v. B. A., 2 WEEKLY NOTES, 481.
Gass v. B. A., 14 Norris, 101.
Ins. Co. v. Kniley, 2 Pearson, 229.

February 20, 1888. THE COURT. While the undoubtedly have been a good payment and disfacts intended to constitute an affidavit of defence charge of the association's lien on the lot in quesneed not be presented according to any prescribed tion; and payment, or what under the circumform, they must be so distinctly stated that the stances is tantamount thereto, by his direction to nature and character of the defence will clearly Bliss, the accredited solicitor and agent of the appear. In passing upon the sufficiency of such association, is equally effective. Beeby's check affidavits, every material and unequivocal aver- on the Chester National Bank was offered and ment of fact must be accepted as verity. accepted in lieu of the money, and if it had Applying these principles to the affidavits in been presented within a reasonable time, the question, we think they present, with sufficient money it represented would have been received. clearness and precision, facts which prima facie It was the duty of Bliss to either turn over the constitute a good defence as to that portion of the check to the secretary of the association or draw mortgaged premises which is owned by the terre- the money and pay it over without unnecessary tenant, plaintiff in error. In substance the aver-delay. By reason of his neglect to do either, the ments are that after the mortgage in suit was money was lost, without any fault of plaintiff in executed and delivered by the then owner of both error. As between him and the association the houses and lots to the Home Building and Loan latter should bear the loss thus occasioned by the Association, plaintiff below, Troth, the mort-negligence of its own accredited attorney and gagor, on June 5, 1885, for the consideration of agent. $2200, sold one of the lots to Kilpatrick, one of It cannot, of course, be claimed that the rethe defendants below, clear of all incumbrances; ceipt of Beeby's check was per se payment of that when the deed was delivered, Troth, Kilpat- the association's claim. It is well settled that, rick, and George Beeby, agent of the latter, met in the absence of an agreement to the contrary, at the office of the association, and were then and a check or promissory note, of either the debtor there informed by Patrick Bradley, its secretary, or a third person, received for a debt, is merely that the payment of $1380.20 was required to ob- conditional payment—that is, satisfaction of the tain a release of the association's claim against debt, if and when paid; but the acceptance of the lot Troth was about conveying to Kilpatrick, such check or note implies an undertaking of due and thereupon the latter directed Beeby, in whose diligence in presenting it for payment, etc., and hands he had placed $1500 for the purpose, to pay if the party from whom it is received sustains Bradley said sum of $1380.20, in full for the as-loss by want of such diligence, it will be held to sociation's claim against the lot in question. operate as actual payment. (2 Pars. on Bills, Bradley, instead of receiving the money, directed 154; Freeholders v. Thomas et al., 5 C. E. Green, Beeby to pay it to W. R. Bliss, the solicitor of 39; McIntyre v. Kennedy, 29 Pa. 448, 455.) It the association, which was done on the following is on that principle alone that Beeby's check, deday by giving him his check on the Chester Na-livered at the instance and for the benefit of Kiltional Bank, where he then had, and until Au- patrick, can be regarded as a payment of claims gust 1st following continued to have on deposit, held by the association. money applicable to the payment of the check; that, instead of presenting the check within a reasonable time, Bliss held it until September, after Beeby had misappropriated the money and become insolvent; that by reason of Bliss's negligence in not presenting the check within a reasonable time, and the continued insolvency of the drawer, the money was lost without any fault of Kilpatrick, the terre-tenant, who believed the check had been duly presented and paid.

The averments contained in the affidavit of defence are quite sufficient to send the case to a jury.

Judgment reversed, and a procedendo awarded.
Opinion by STERRETT, J.

GORDON, C. J., and TRUNKEY, J., absent.

L. L., Jr.

January 6, 1885.

Camden and Atlantic R. R. Co. v. Pennypacker.

Affidavit of defence law- What instruments are within-Sufficiency of affidavits-Averments -Guaranty and suretyship.

If these facts, all of which are substantially Jan. '84, 206. averred in the affidavits, were proved to the satisfaction of a jury, they would be fully warranted in finding for plaintiff in error. In taking a conveyance of the lot it was his business to ascertain the amount of the mortgage incumbrance thereon and provide for its payment. For that purpose he went to the proper person, the secretary and executive officer of the association, who was authorized to furnish the desired information, receive money due and payable on the mortgage, etc. If Bradley himself had received the money, it would

A bond, with its coupons, issued by A. railroad company, made payable at the office of B. railroad company, and indorsed Payment of the principal and interest of the within bond is guaranteed by the B. railroad company," does not import upon its face such

"Payment of the principal and interest of the withRailroad Company.

Error to the Common Pleas No. 4, of Phila- in Bond is guaranteed by the Camden and Atlantic delphia County.

The contract is one of guaranty. The original the bonds of the May's Landing and Egg Harbor debtor must first be exhausted.