Page images

In White 2. Dixon,' the plaintiff, as riparian owner, sued an iron mining company for fouling the water of the stream by pumping into it polluted water from their pits or shafts by means of drains leading therefrom into the stream. The defence was, in the first place, that if the water was not pumped into the stream in this way it would rise in the shaft until it reached the old levels from which it would flow into the stream. The water, the defendant averred, was the natural drainage water of the ground, not used in any manufacture and uncontaminated by any arti. ficial process. And the defendant further pleaded that it was necessary for the working of their inines that the water should be so pumped and discharged.

The plaintiff prayed to have his right as riparian owner declared and the defendant enjoined.

The report is upon the plaintiff's motion for trial before the Lord Ordinary instead of a trial by jury. The inotion was granted on account of "the legal questions of novelty and difficulty in reference to the rights of mineral proprietors to drain their workings."

The Lord Justice CLERK thought this was a good reason, because the water complained of was not an 'opus manufactum.” And Lord NEAVES said : “I do not say that the natural drainage of the ground is not pollution merely because it is not the result of a manufacture, if it be produced or used in an unusual way." default which would, but' for the act, be deemed to be a nuisance, or otherwise contrary to law; and it appears that the act does not affect private rights and duties, nor does it concern the relation which riparian proprietors bear to one another : Clerk & Lindsell Torts, 312.

17 Sessions Cases, Scotch. 4 Series, 904 (1875).

*The writer has, after diligent search, not been able to find any sub sequent report of this case, discussing and deciding it ou its merits. The reader may also refer to Elwell v. Crowther, 31 Beavaa, 163: Jegon o. Vivian, 6 Ch. Ap., 758; Wright v. Williams, 1 M. & W., 77, where pollution from mine water seems to be considered as under the ordinary rules, though the report only concerns a question of pleading: Wood v.. Wand, 3 Bxcb., 748. MacSwidney on Mines, 396, says a riparian owner may, by pamping water from his mines into a stream, "alter its quality in a reasonable degree," but "may not sensibly alter its quality." Anthority for this somewhat ambiguous statement is wasting, and appe. rently no other writer is of like opinion.

If Justice WOODWARD), in 86 Pa. St., 401, had, in affirming the judgment of the lower court, reciicd the gen. cral rule on the subject of the pollution of streams as followed in Howell v. McCoy' and other cases, referred to the English cases above cited, and Wheatley v. Chrisman,' as applying the general rule to cases of mining and met the arguinent founded on the public importance of the case by the answer that the public welfare is better maintained by preserving the legal rights of the individual than by subordinating them to antagonistic interests however greatif his opinion had followed this line of thought the subsequent reversal would liave been more difficult of accoma plishment. But the opinion was founded in great part lipon a case which seems, upon careful examination, to have no application—that of Fletcher 2. Rylands."

Having now reached a point where an analysis of Rylands z'. Fletcher is necessary, that analysis, and con. siderations suggested by it, will forin the subject of ::

second paper.

'3 Rawle, 256.
• 24 Pa. St., 298.
*3 H. & C., 774; L. R., 1 Exchi, 280, S. C.; L. R. 13 H. L., 330.

The Annotations are prepared by the following Editors and Assistants : Department of PRACTICE, PleadinG AND EVIDENCE.

Hon, George M. Dallas, Editor. Assistants : Ärilemus Stewart,

Jlenry N. Smallz, John A. McCartlıy, William Sanderson Furni. Department of CoxSTITUTIONAL LAW.

Prof. Christopher 0. Tiedeman, Editor. Assistants: Wm.

Draper Lewis, Wm. Struthers Ellis. Department of MUNICIPAL CORPORATIONS.

Hon. John F. Dillon, LL.D., Editor. Assistant: Jayne R. Long

streth. Department of EQUITY.

Richard C. McMurtrie, LL.D., Editor. Assistants : Sydney .

Fisher, Jobn Douglass Brown, Jr., Robert P. Bradford. Department of Torts.

Melville M. Bigelow, Esq., Editor. Assistants : Berjamin H.


Angelo T. Freedley, Esq., Editor. Assistants: Lewis Lavrence

Smith, Clinton Rogers Woodruff, Maurice G. Belknap. H.

Boree Schermerhorn. Department of CARRIERS AND TRAY ,PORTATION COMPANIES.

Charles F. Beach, Jr., Esq., Editor. Assistants : Lawrence God.

kin, Owen Wister, Victor Leovy, Cyrus E. Woods. Department of ADMIRALTY.

Morton P. Henry, Esq., Editor. Assistant : Horace L. Cheyney. Department of Commercial Law.

Frank P. Prichard, Esq., Editor. Assistants : H, Gordon Mc.

Couch, Chas. C. Bioncy, Chas. C. Townsend, Francis H.

Bohlen, Oliver Boyce Judson. Department of INSURANCE.

George Richards, Esq., Editor, Assistants : George Wharton

Pepper, Luther E. Hewitt, Samuel Kahn Loucbeim. Department of CRIMINAL LAW AND CRIMINAL PRACTICE

Prof. Geo. S. Graham, Editor. Assistants : E. Clinton Rhoads,

C. Percy Willcox. Department of PATENT LAW.

George Harding, Esq., Editor. Assistant: Hector T. Fenton. Department of PROPERTY. Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland

Haig, Wm. A. Davis, Jos. T. Taylor. Department of MEDICAL JURISPRUDENCE.

Hon. Marshall D. Ewell, LL.D., Editor. Assistants: Thomas

E. D. Bradley, Milton O. Naramore. Department of WILLS, EXECUTORS AND ADMINISTRATORS.

Hon. Wm. N. Ashman, Editor. Assistants : Howard W. Page,

Charles Wilfred Coorad, Joseph Howard Rhoads, William

Henry Lloyd, Jr., Edward Brooks, Jr. Department of TRUSTS AND COMBINATIONS IN RESTRAINT OF TRADE M, La Barre Jayne, Eeq., Editor. Assistants: George S. Patterson,

Charles F. Eggleston.



Assisted by

H. GORDON McCoucn,


[ocr errors][merged small]

Novalion-Slalule of Frauds. Where G owes C, and M owes G, C demands payment of G. G gives bim an order on M. C agrees to release G provided M accepts order. M accepts order and pays $45 thereon, and promises to pay balance at future time. M is released as G's debtor and becomes the debtor of C. M thereby accepts C as his creditor in place of G.

M, at request of G, agrees to pay to C money that he owes by con. tract to G. Such contract is not within the Statute of Frauds, requiring the promise to pay the debt of another to be in writing. I simply pays his own debt to a different person than the one he originally agreed to pay it lo. He is paying bis own debt, not the debt of another.


SULLIVAX, J. Miller was owing Gates, Gates was owing Casey, and Miller simply agreed to pay the sum of $315 due from him to Gates, to Casey, or, in other words, he had agreed to accept Casey as his creditor instead of Gates. Miller did not, under said agree. inent, agree to pay the “debt of another," within the incaning of that terın as used in the Statute of Frauds, but simply agreed to pay the debt owing by himself to appellant instead of to Gates. In Barringer v. Warden,' the Court, in referring to the Statute of Frauds, said “that the statute requires the proinise to pay the debt of another to be in writing expressing the consideration; but this requirement has no reference to the promise by A to pay money that he owes by contract with B, to C. This is his debt, and the mere direction in which he pays it does not alter the character of the contract from the

"12 Col.. 311.

original obligation. There is no difference between a debtor promising to pay his creditor directly so much money which he owes him, or promising his creditor to pay a third person the same sum, by an agreement between the three. The promisor is paying his own debt and his own obligation, and not assuming another's. . . So, in the case at bar, Gates consented to such arrangement and gave Casey an order on the respondent. Casey assented to the arrangement by accepting the order; Miller assented by agreeing to pay the order." WHAT PROMISES TO I'AY THE DEBT OF ANOTHER ARE WITHIN THE

STATUTE OF PRAUDS. This recent case is a welcome received by the promisor, the naone in its field, for by its clear ture of such consideration, and the language it helps to lessen the con fact of its being expressed in writfusion which some less deliberate ing, or not, are other examples of opinions in the long line of decis what has influenced the courts. ions on this subject bare occa The two classes of promises in sioned. Tte cases which have this connectiou are conveniently, turned on the question whether a if not always accurately, distin. man is paying his own debt or guished by the terms "original" another's are numerous, the decis. and "collateral." The former is ions often conflicting, and the thus defined by the Court in grounds on which the same con Nugent 0. Wolse, ut Pa., 480: clusions are based, various.

“When the leading object of the The answer to the question is promisor is to subserve soune inter. usually found by applying a test to est or purpose of his own, not with. the circumstances of each particu standing the effect is to pay or iar case. But, unfortunately, the discharge the debt of another, his authorities differ as to what that promise is not within the Statute test sbould be. Sometimes it is of Frauds" and need not be in the nature of the promise itself; if writing. “ Collateral promises, the promisor derives actual benefit where the object of the promisor from, or furthers bis own interest is to become sarety or guarantor by his promise, potwithstanding of another's debt, or to obtain the that be thereby discharges the release of the person or property debt of a third person, the first of the debtor, or other forbearance attribute prevails over the second, or benefit to him, are within the and his is a promise to pay his own Statute of Frauds and not nlid debt, not within the Statute of unless in writing." Frauds, and need not be in writing. In the following cases the de lo some cases the fact of the third cisions appear to have been based persón continuing to be liable principally on the nature of the after the promise is made is sup- promise itself. posed to be the proper criterion. Barringern. Warden, 12 Cal., The existence of a consideration · 311 (1859). A owed money by cou

« PreviousContinue »