State, although they have neither possession nor control of the property, and none of it is in this State, the trust estate must pay tribute to us. We think not. The order of the General Term should be re versed, and that of the Special Term, setting aside and vacating the assessment, should be affirmed, with costs. All concur, except Earl, J., absent. PENNSYLVANIA SUPREME COURT. SCHUYLKILL RIVER EAST SIDE R. judgment in favor of plaintiff in a proceeding CO., Plf. in Err., V. John J. KERSEY. (....Pa.....) 1. In proceedings to assess damages for the taking of property for railroad purposes, whatever injuriously affects the owner's adjoining property as the direct and necessary result of the location of the road may be considered by the jury in making their assessment. 2. Where the location of a railroad across property leased as a coal yard makes necessary new appliances for the continuation of the coal business and increases the cost of raising and storing the coal as well as the breakage and waste in handling it, the additional expense and loss, together with the cost of the new appliances, may properly be received in evidence in a proceeding by the lessee to recover damages for such location, not as specific items of claim, but as affecting the market value of the leasehold. NOTE.-Compensation for land taken for railroad purposes. to recover damages for the taking by defendant for railroad purposes of a portion of property in which he had a leasehold interest. Affirmed. The case sufficiently appears in the opinion. Messrs. Thad. L. Vanderslice and Lewis C. Cassidy, for plaintiff in error: The question for the jury was, What was the value of the leasehold interest before the railroad affected it at all? It was worth to plaintiff the same sum it was worth for sale and transfer, and the mode of ascertaining the sum is by the testimony of witnesses upon its market value. Pennsylvania R. Co. v. Eby, 107 Pa. 166. A tenant's damage is to be measured by the same rule that is applied to the owner of the fee-What was his estate worth before and after? What injury was done to his property? Philadelphia & R. R. Co. v. Getz, 113 Pa. 214. The price which, upon full consideration of the matters stated, the judgment of well-informed and reasonable men will approve, may be regarded as the market value. Pittsburgh & W. R. Co. v. Patterson, 107 Pa. 464. The jurors are to value the injury to the property, without reference to the person of the It is proper to consider, in estimating the damages for a right of way for a railway, the manner in In condemnation proceedings the land owner is which the road cuts the land, the excavations and entitled to full compensation for the land actually embankments, and the exposure of the property taken, and for such damages to the residue as are to particular injuries from the proximity of the equivalent to the diminution in value, general bene-road. Fremont, E. & M. V. R. Co. v. Meeker (Neb.) fits not considered. Fremont, E. & M. V. R. Co. v. 44 N. W. Rep. 79. Meeker (Neb.) 44 N. W. Rep. 79. The damages include what is necessary to make good all that results, directly or indirectly, to the injury of the owners in the whole premises and interests affected, and not merely the strip taken. Grand Rapids, L. & D. R. Co. v. Chesebro (Mich.) 42 N. W. Rep. 66. In determining the question of damages, advantages and disadvantages from the appropriation are considered, and are to be estimated upon the land as a whole. Baltimore & P. R. Co. v. Springer (Pa.) 11 Cent. Rep. 685. Where the tract taken is part of a larger connected body of land, the owner may recover for the injury done to the tract as a whole, and is not restricted simply to the part described. Fayetteville & L. R. R. Co. v. Hunt, 51 Ark. 330. The full value of land actually condemned for a railroad must be allowed as damages, although the company does not acquire the fee. Ibid. Just compensation for land taken consists in making the owner good, by an equivalent in money, for the loss he actually sustains in the value of his property by being deprived of a portion of it. It includes, not only the value of the land taken, but also the diminution in the value of that from which it is severed. Laflin v. Chicago, W. & N. R. Co. 33 Fed. Rep. 415. See Esch v. Chicago, M. & St. P. R. Co. 72 Wis. 229. The compensation is the difference between the value of the land as it existed before, and of the remaining portion after, the construction of the railroad. Re Scott, 6 Manitoba L. Rep. 193. It is the difference between its value before and after the construction of the road, without taking into consideration any of the benefits to be derived from the railroad. Wichita & W. R. Co. v. Kuhn, 38 Kan. 104; Baltimore & P. R. Co. v. Springer (Pa.) 11 Cent. Rep. 685; Hartman v. Reading & P. R. Co. (Pa.) 12 Cent. Rep. 447; Chicago, B. & N. R. Co. v. Bowman, 11 West. Rep. 598, 122 Ill. 595; Concordia Cem. Asso. v. Minnesota & N. W. R. Co. 10 West. Rep. 573, 121 Ill. 199. In determining the damages to a farm, caused by the construction of a railroad, it is proper to take into consideration every element of damage that might be reasonably anticipated before the road is built, and what really does exist and is apparent after the road is constructed. This includes the inconvenience of crossing, the raising of embankments, the digging of ditches, pools of stagnant water, and the obstruction to surface water by throwing it into the channels or by damming it up. Wichita & W. R. Co. v. Kuhn, supra; Weyer v. Chicago, W. & N. R. Co. 68 Wis. 180. See, generally, San Diego L. & T. Co. v. Neale, 3 L. R. A. 83, 78 Cal. 63. owner, or the actual state of his business; and | property into two parts. The sheds, runs and in doing that the only safe rule is to inquire, What would the property unaffected by the obstruction have sold for at the time the injury was committed? What would it have sold for as affected by the injury? The difference is the true measure of compensation. Schuylkill Nav. Co. v. Thoburn, 7 Serg. & R. 411. Plaintiff should not have been permitted to prove his loss by breakage of coal, or the increased cost of handling it to the end of his term, as specific items of damage. Reading & P. R. Co. v. Balthaser, 119 Pa. 482. Mr. Joseph L. Caven, for defendant in error: If by reason of the taking of the property, or its destruction, the plaintiff was specially injured, he is entitled to compensation for such injury. Pennsylvania R. Co. v. Eby, 107 Pa. 106; Philadelphia & R. R. Co. v. Getz, 113 Pa. 214. The plaintiff's damages will be the value to him of the leasehold, for the uses to which he is to devote it, viz., a coal wharf and yard. Chicago, E. & L. S. R. Co. v. Catholic Bishop, 119 Ill. 525. Where one is compelled by the entry of a railroad to remove and re-establish the same business elsewhere, he must be allowed the expense of such removal and re-establishment. Philadelphia & R. R. Co. v. Getz and Pennsylvania R. Co. v. Eby, supra; Chicago, M. & St. P. R. Co. v. Hock, 118 Ill. 587; St. Louis, V. &T. H. R. Co. v. Capps, 67 Ill. 607. Plaintiff must be allowed the reasonable and necessary expense for putting his property in the same condition as it was before. Price v. Milwaukee & St. P. R. Co. 27 Wis. 98; Chase v. Worcester, 108 Mass. 60; Walter v. Post, 4 Abb. Pr. 382. Evidence to show the increased cost of storing and handling coal, and the increased breakage and wastage to the end of the term, necessarily resulting from these new appliances, was admissible. Pennsylvania R. Co. v. Eby, supra; Pitts burgh Junction R. Co. v. McCutcheon (Pa.) 5 Cent. Rep. 759; Pittsburgh, V. & C. R. Co. v. Vance, 115 Pa. 325; Tucker v. Massachusetts Cent. R. Co. 118 Mass. 546. McCollum, J., delivered the opinion of the court: No complaint is made by the defendant Company of the instructions to the jury on the question of damages, and our inquiry is limited to alleged error in the admission of evidence. The plaintiff was the lessee of a wharf property on the Schuylkill River in Philadelphia, extending from the river to Twenty-Fourth Street. It was leased to him as a coal wharf and yard. Upon it he carried on the business of receiving, storing and delivering coal for other parties, and of receiving, storing and selling coal and sand on his own account. The appliances used in the business and necessary to carry it on belonged to him. In January, 1886, the defendant Company entered, and located its road upon the demised premises, appropriating for that purpose a strip of land sixty feet in width, and dividing the other appliances indispensable to the business for which the property was leased were partially destroyed by this addition of the Company, and the construction of new ones adapted to the changed condition became necessary in order to continue the business. A bridge with a single span of sixty-eight feet and an elevation of twenty-one feet above the railroad tracks, and a derrick, sheds and runs of a corresponding height were required. The Company recognized the necessity for these appliances as the direct consequence of the location of its railroad, and admits that it promised the plaintiff to construct them, but excuses its nonperformance on the ground that it could not agree with him as to the details of the work. In other words, the plaintiff wanted better structures than the Company was willing to build, or considered necessary, in view of the probable duration of his leasehold. It was contemplated by the parties that the business should be continued by the plaintiff, and that he should have as far as practicable the same facilities for carrying it on that he had before enjoyed. It was the only business which his lease allowed him to establish there, and if he abandoned it his leasehold was worthless, because he could not sublet or sell it without the consent of his lessor. The Company failing to provide the facilities it conceded he was entitled to and had promised he should have, he constructed such appliances as were necessary for the continuance of the business as it existed before the location of the railroad. The increased height of the structures increased the cost of raising the coal, and the breakage and waste in handling it. This additional expense and loss, together with the cost of the new appliances, he was allowed to show and prove on the trial of this issue. The Company objected to this evidence and now contends that the court erred in admitting it. It is well settled that the proper measure of damages is the depreciation in the market value of the property, caused by the location and construction of the railroad. But the elements to be considered in the ascertainment of this depreciation are as varied as the properties affected and the uses to which they were applied. A specification of all these elements is impossible, because they cannot be anticipated, and many of them remain to be developed in the course of the litigation consequent upon the taking of property by eminent domain. In the ordinary case of the appropriation of land for railroad purposes the opinions of witnesses who are conversant with the property and the general selling price of lands in the vicinity are received on the question of its value unaffected by the road and its value as affected by it. this is not exclusive of other, and in some cases, better, methods of proof. It may be stated as a general principle, applicable to cases of this sort, that whatever injuriously affects the property, as the direct and necessary result of the location of the road upon it, may be considered in the assessment of damages. But In this case the estate of the plaintiff was limited to a particular use. Its enjoyment in accordance with the terms of its creation required that the appliances which had been rendered useless by the entry of the defendant Truly yours, Morton P. Henry, Attorney for the Royal Insurance Company. April 17, 1888. Company should be reconstructed at an eleva- | which would be to prevent a suspension of the tion which increased the cost of raising and rent during the time of rebuilding. storing the coal, and increased the breakage and waste in handling it. We think these matters were properly received in evidence as descriptive of the injury inflicted and the burden imposed on the property by the occupation of it for railroad purposes, and that they were for the consideration of the jury, not as specific items of claim, but as affecting market value. The specifications of error are dismissed, and The judgment is affirmed. The other material facts sufficiently appear in the opinion. Mr. Morton P. Henry, for plaintiff in error: Fire insurance is a contract of indemnity. ROYAL INSURANCE CO., of Liverpool, Ins. Co. 1 Fed. Rep. 68. v. Marietta HELLER. (......Pa.......) 1. An entry by a landlord to rebuild a burned building, under an agreement with the tenant that the latter shall continue to pay rent during the time of rebuilding, in consideration of the landlord's promise to grant a new lease of the improved property on more favorable terms, will relieve an insurance company of its contract to indemnify the tenant for any loss accruing to him by reason of having to pay rent for the insured building during such time as it should be untenantable by reason of fire. 2. No stipulation between third persons can continue upon one an obligation from which the law relieves him. 3. An insurance company's letter stating that it could not, by reason of the landlord entering for the purpose of rebuilding, be discharged from liability on a policy insuring a tenant against liability for rent in case the leased buildings are burned, and that such defense would not be raised, will not estop the company from asserting its discharge from further liability by reason of an entry by the landlord under an agreement with the tenant to continue the payment of rent. (March 10, 1890.) After a loss has occurred to the subject of insurance the insured not only cannot by any act of his own increase the liability of his insurer or indemnifier, but he must do everything in his power to mitigate and reduce the loss. Wood, Fire Ins. p. 776; Atlantic Ins. Co. v. Storrow, 5 Paige, 285; Niagara F. Ins. Co. v. Fidelity Title & Trust Co. 123 Pa. 516; Ins. Co. of N. A. v. Fidelity Title & Trust Co. 2 L. R. A. 586, 123 Pa. 523; Carstairs v. Mechanics & T. Ins. Co. 18 Fed. Rep. 473. The liability of the insurer, like that of a after the obligation has been entered into. surety, cannot be enlarged without his consent Crawley v. Com. 123 Pa. 275. If the landlord enters on the premises for the purpose of rebuilding, either with or without the consent of his tenant, the liability of the tenant for rent ceases. Magar v. Lambert, 3 Pa. 444; Hoeveler v. Fleming, 91 Pa. 322; Ex parte Vitale, 47 L. T. N. S. 450; Platt, Covenants, 197. When Mrs. Heller agreed to continue to pay the rent it was a voluntary assumption of a continuing liability for rent after the time when the law relieved her, and the company thereby became exonerated in full from further loss under their policy. Darrell v. Tibbitts, L. R. 5 Q. B. Div. 560; Castellain v. Preston, L. R. 11 Q. B. Div. 380; Friemansdorf v. Watertown Ins. Co. supra. Mr. M. Hampton Todd, for defendant in error: No one was discharged from liability, no inERROR to the Court of Common Pleas, No. 4, of Philadelphia County to review a judg-jury of any kind done to the defendant. The ment in favor of plaintiff in an action upon a should rebuild, and that the entry for that purplaintiff agreed with her landlord that he policy insuring plaintiff against liability to pay rent for certain leased property in case the pose should not be construed as an eviction or buildings thereon were destroyed by fire. versed. Re During the negotiations for a settlement of the rights of the parties and permission to have the buildings rebuilt, the attorney of the insurance company wrote the following letter: M. Hampton Todd, Esq., Attorney for Mrs. Heller. Dear Sir:-The Royal Insurance Company could not be discharged from liability on Mrs. Heller's policy, by reason of the landlord entering for the purpose of rebuilding, nor will such a defense be raised. But they decline to be parties to any agreement that the landlord shall be permitted with their consent to rebuild, the only effect of surrender. Niagara F. Ins. Co. v. Fidelity Title & Trust Co. 123 Pa. 516. Mitchell, J., delivered the opinion of the court: The facts in this case as they appear in the affidavit of defense and the plaintiff's statement are practically undisputed, and they establish a complete defense. Defendant by its policy agreed to indemnify plaintiff for "any loss accruing to her by reason of having to pay rent for the (therein) described building such time or times as the building may be untenantable by reason of fire or fires occurring during the continuance of this policy." A fire occurred in January, 1888, and the landlord entered to rebuild, in July. That as a legal consequence | parting from this plain course except the Pennwould have suspended the payment of rent. It was a rescission pro tanto of the lease. Magaw v. Lambert, 3 Pa. 444; Hoveler v. Fleming, 91 Pa. 322. sylvania Company, which, if the scheme had succeeded, would have transferred its own proper loss to the defendant. But when the parties undertook to vary the defendant's contract liability from that which the law imposed, their action was ineffective for such purpose, and as to the defendant totally void. Reference was made during the argument to the correspondence and a claim suggested that the present defense had been waived. But such a view is untenable. The meaning of the letter of defendant's counsel, dated April 17, 1888, is entirely clear. The defense which it says will not be raised is that defendant will be" discharged from liability by reason of the landlord entering for the purpose of rebuilding." Of course not. The fire had taken place in the preceding January, and nearly three months' rent was due at the date of the letter. From liability for this rent and such other as should accrue up to the entry of the landlord, such entry would not be a discharge, and the letter says that such a defense will not be raised. But then, to make certain that its meaning is not more than this, it goes on to say explicitly that defendant will not consent to anything which will vary the legal effect of the landlord's entry, to wit, the suspension of the rent during the rebuilding. There is here no waiver of any of defendant's rights. Judgment reversed, and procedendo awarded. Clark, J., not sitting. Defendant was liable under its policy for the rent from January to July, and that amount it paid. But the plaintiff and her landlord entered into an agreement by which the former agreed to continue to pay rent during the rebuilding of the store, and in consideration therefor the latter agreed to rebuild with certain improvements and to give a new lease on more favorable terms. This agreement discharged the defendant. The payment of rent under it by plaintiff was a voluntary undertaking, not a legal obligation under the first lease, against which alone the policy undertook to indemnify her. It is set out in the pleadings that the landlord was insured as to his rent in the Pennsylvania Fire Insurance Company, and that that Company, asserting a right of subrogation to the landlord's claim for rent against the tenant, procured the landlord not to re-enter until the plaintiff made the agreement in question, and that by that agreement it was expressly stipulated that the rights and liabilities as to rent, and as to claims under their respective insurance policies, should not be affected. But these facts are entirely immaterial. If true, they showed a fraudulent at tempt on part of the plaintiff, the landlord and the Pennsylvania Fire Insurance Company to shift a burden which belonged on them to the defendant. But even if there was no such fraudulent purpose, the effect of the agreement was to continue upon the defendant an obligation from which the law relieved it, and no Jacob M. DUNCAN,_Impleaded, etc., Piff. stipulation between the other parties without its consent could accomplish such a result. in Err., v. Stephen FLANAGAN. (....Pa.....) In a suit by a judgment debtor against one jointly liable with him on the demand for which the judgment was recovered, but who during the pendency of the action had been discharged in bankruptcy, for contribution towards payment of the judgment, an affidavit of defense which impugns the good faith of plaintiff by setting out that, defendant having been notified that the former suit had been abandoned, his codefendant, the present plaintiff, had the proceedings renewed and carried to judgment without notifying the present defendant and thereby prevented him from pleading his discharge in bankruptcy, and that such co-defendant, although assuming to conduct the defense for the benefit of all parties concerned, and, knowing of such discharge, neglected to set it up as a defense, is sufficient. It is said that the hardship of plaintiff's situation forced her to make the agreement, and that without it the landlord would not have re-entered, and the defendant would then have been liable for an entire year's rent. Perhaps so, perhaps not. What the landlord would have done there are no means of ascertaining, but what it was his interest to do is clear enough. He might have lain by and collected his rent from plaintiff till the end of her lease, but then he would have had to lose rent while he rebuilt. Or he might have rebuilt during her lease, and looked to his insurance for indemnity while the rent was suspended by the rebuilding. It was manifestly his interest, therefore, to enter and rebuild during the running of plaintiff's lease and his own policy in the Pennsylvania Company. He had nothing to gain and something to lose by delay. The hardship in plaintiff's situation was in having an insufficient insurance. She was bound to pay rent for three years and only indemnified for one. It was her interest, therefore, to have the rebuilding done as soon as possible. honest and proper course for all parties would have been to rebuild at the earliest convenient time. The plaintiff would then have paid rent until the rebuilding commenced, and would have been indemnified by the defendant. The rent would have been suspended during the rebuilding, and the landlord would have NOTE. "He who comes into equity must come been indemnified by the Pennsylvania Com- with clean hands." See note to Medford v. Levy (W. pany. No one had anything to gain by de-Va.) 2 L. R. A. 368. The ERE (March 24, 1890.) RROR to the Court of Common Pleas, No. 2, of Philadelphia County to review a judgment in favor of plaintiff for want of a sufficient affidavit of defense in an action against his joint debtor for contribution towards pay- | him, unless he avails himself of the proceedment of the judgment recovered on the debt.ings in bankruptcy. Reversed. On September 20, 1872, Duncan and Flanagan and others entered into a contract by which they agreed to procure and ship a cargo of beef from Galveston, Texas, to Philadelphia, on joint account. The steamer Francis Wright was chartered for the adventure. In 1874 suit was brought in New York on the charter-party by the owners of the Francis Wright and a judgment recovered in favor of plaintiffs. Flanagan paid this judgment and brought suit to recover contribution from his co-defend ants. Further facts appear in the opinion. Messrs. A. A. Hirst and J. Howard Gendell for plaintiff in error. Mr. George P. Rich, for defendant in error: This action will lie to recover from Duncan his proportion of the joint expenses. Kutz v. Dreibelbis, 126 Pa. 335; Brubacker v. Robinson, 3 Penr. & W. 295; Galbreath_v. Moore, 2 Watts, 86; Wright v. Cumpsy, 41 Pa. 102; Finlay v. Stewart, 56 Pa. 183; Meason v. Kaine, 63 Pa. 335. The adventurers are joint debtors, who, as between themselves and their creditors, were each liable for the whole debt; but, as between themselves, each is liable for his proportion only, and as to the rest is surety for the others. Ackerman's App. 106 Pa. 1. The doctrine of subrogation does not depend on privity, nor is it confined to cases of strict suretyship; it is a mode which equity adopts to compel the ultimate discharge of the debt by him who, in good conscience, ought to pay it; and to relieve him whom none but the creditor could ask to pay. McCormick v. Irwin, 35 Pa. 111; Bender v. George, 92 Pa. 36; Ackerman's App. supra. Even if the judgment has been marked "satisfied" on the record, equity will keep the debt alive, and the surety paying is entitled to be subrogated as against all but intervening creditors. Palmer v. Merrill, 57 Me. 26; Re Leibenstein, 4 Chic. Leg. News, 309. Green, J., delivered the opinion of the court: unex The liability upon which the judgment in the State of New York was recovered against the plaintiff and the defendant jointly grew directly out of the original article of agreement made on September 20, 1872. The plaintiff, the defendant and several others were parties to that agreement, and in it they all agreed that the charter of the steamship Francis Wright was accepted and was "for the account and risk of all concerned in the joint venture.” The owners of the Francis Wright brought the action in New York in 1874 against the plaintiff, the defendant and some of the other parties to the agreement, claiming the sum of $6,966.86 as a balance due for the charter and hire of the vessel during the joint venture mentioned in the agreement. For some plained reason the case seems to have slumbered for nine years and it was not until 1883 that the action was tried and resulted in a verdict and judgment for the plaintiffs, and against four of the defendants, including the plaintiff and defendant in the present suit. The liability upon which that action was founded, and for which the judgment was recovered, arose exclusively from the agreement of 1872. It was therefore in existence at the time Duncan's proceeding in bankruptcy was commenced and at the time of the adjudication in 1878, and the discharge in 1881. We know of no reason why that liability could not have been proved against Duncan. It was at least a claim for unliquidated damages arising out of a contract which is provided for by section 5067 of the Bankrupt Act. In the affidavit of defense it is alleged that the defendant was informed that the New York suit had been abandoned, and that nearly nine years after the suit was commenced a supplemental complaint was filed to which Flanagan made answer but never noti Wright v. Grover, 82 Pa. 80; Bailey v. Brown-fied Duncan of it, and that he, Duncan, had ,field, 20 Pa. 41. If a demand is not provable, it is not barred by the certificate of discharge in bankruptcy. Murray v. De Rottenham, 6 Johns. Ch. 52. As to demands not barred, see Large v. Bosler, 3 Pa. L. J. 246; Kingsley v. Prentiss, 6 Pa. L. J. 479; United States v. The Rob Roy, 13 Nat. Bankr. Reg. 235; Loring v. Kendall, 1 Gray, 305; Fowler v. Kendall, 44 Me. 448; Eastman v. Hibbard, 13 Nat. Bankr. Reg. 360; Pike v. McDonald, 32 Me. 418; Leighton v. Atkins, 35 Me. 118. The right to plead his discharge in bar of an action pending against him is exclusively the bankrupt's personal right. If he fails to avail himself of it, judgment may be rendered against him. Manwarring v. Kouns, 35 Tex. 171; Park v. Casey, 35 Tex. 536; Fellows v. Hall, 3 McLean, 487; Steward v. Green, 11 Paige, 535; Freeman v. Warren, 3 Barb. Ch. 635; Seymour v. Browning, 17 Ohio, 362; Taylor v. Renn, 8 Chic. Leg. News, 410; Horner v. Spelman, 78 Ill. 206. Notwithstanding the defendant's bankruptcy, a valid judgment can be rendered against no knowledge of it; and also that the suit was tried practically on the supplemental complaint and answer. The affidavit also alleges that Flanagan was represented in that suit by Benedict, Taft & Benedict, New York lawyers, who undertook to appear for all the defendants, and who were aware that Duncan had been adjudged a bankrupt, that subsequently to his discharge Flanagan and the lawyers ignored him and undertook the conduct of the case, and that it was the duty of the lawyers to have pleaded Duncan's discharge while assuming to act for him. The affidavit further charges Flanagan with having renewed the proceedings in 1883 without notice to, or knowledge by, Duncan, and without having given him an opportunity to plead his discharge. As Flanagan now seeks to recover in this action against Duncan upon the equitable principle of contribution, it is necessary that his hands should be clean. His good faith is impugned by the facts alleged in the affidavits of defense which we must assume to be true; and as those facts tend to show that he acted in bad faith in so conducting the defense in the New |