to the assignee to carry on protracted litigations at the expense of the estate, and in that way diminish the amount which should be available to the successful judgment creditors, or perhaps exhaust it altogether."

The decree on the appeal of the Perry Mason Bhoe Company is affirmed.

The decree on the appeal of Blacker, Gurstle & Co. is affirmed as to the compensation awarded W. E. Howard and W. G. Sykes, receiver and assignee, and is reversed as to the fees allowed him for attorney's fees in defending unsuccessfully against the cross-petitions upon

which the assignment was vacated, and remanded, with directions to the court below to allow the assignee and receiver a reasonable sum for attorney's fees in the receivership proper, for services rendered in the care and preservation of the estate, and for services rendered in defending against the cross-petitions of Bolton and the Perry Mason Shoe Company, seeking to rescind the sales and withdraw specific property from the estate. Costs on this appeal to be equally divided. Decree accordingly.

PENNSYLVANIA SUPREME COURT.

Julius LEWEY, Appt.,

v.

H. C. FRICK COKE CO.

The running of the statute of limitations against a cause of action for removal of coal from a stratum beneath the surface of land by wrongfully extending a mine under lands of other owners begins only from the time of actual discovery of the trespass, or the time when discovery was reasonably possible, at least so far as it applies to the recovery of compensation which would be allowable on a bill for an account in equity in a state where equity is administered through common-law forms of action.

(March 11, 1895.)

severed from the surface by lease or sale, and which the plaintiff has made no effort to mine or remove. The defendant company owns a considerable body of coal lands in the same neighborhood, which adjoins and practically surrounds the plaintiff's land, and is engaged in mining and removing its coal through openings upon its own lands. In 1884, in the progress of its mining operations, the defendant company made an opening or passageway through the plaintiff's coal under one corner of his lot, which was from 75 to 100 feet in length, about 6 feet in height, and 8 to 9 feet wide. The coal removed, amounting to more than 4,000 bushels, was brought to the surface through the defendant's pits or openings on its own lands, and used or disposed of as its own. The plaintiff had no knowledge of the trespass

APPEAL by plaintiff from a judgment of upon him or the removal of his coal, and no

the Court of Common Pleas for Westmore land County in favor of defendant in an action brought to recover the value of certain coal which had been taken by defendant from under land owned by the plaintiff. Reversed.

The facts are stated in the opinion.
Messrs. Williams, Sloan & Griffith and
Atkinson & Peoples for appellant.

Messrs. James S. Moorhead and John
B. Head for appellee.

Williams, J., delivered the opinion of

the court:

means of knowledge within his reach. In 1891, some seven years after his coal was taken, as he alleges, he first became aware of his loss. In the following year he brought this action, and is met with the statute of limitations as a defense. The contention is that it began to run in 1884, when the coal was taken, and had barred his remedy one year before he knew that a cause of action had accrued. The court below so ruled. The correctness of this ruling is the only question now to be considered. When did the statute begin to run? The general rule is, The legal question on which this appeal as stated by the learned trial judge, that it depends is beset with difficulty. The inter- begins to run from the act done, but this is ests to be affected by it must increase in not of universal application. The statute magnitude as the value of the minerals in makes certain exceptions. As to all persons which this state abounds increases. It is not who may be, when the cause of action acdirectly ruled by any of our own cases, and crues, "within the age of twenty-one years, we are at liberty to treat it as a question of femme corert, non compos mentis, imprisoned, first impression. The facts are not in disor beyond sea, it is provided that the statpute. The plaintiff is the owner in fee sim ute shall not begin to run until such disabil. ple of a lot of land lying in the outskirts of ity ceases. In 1842 a supplementary statute the borough of Connellsville, containing restrained the running of the limitation still about one acre and a quarter. This lot is further so as to include a resident plaintiff, underlaid with coal, which has not been laboring under no disability whatever, if the defendant debtor or wrongdoer should be beNOTE.-The above case is a novel remarkable il-yond sea when the cause of action arose.

lustration of the exceptions to the statute of limi

tations which arise in cases of concealed causes of action as it involves ignorance of the trespass and lack of opportunity to discover it rather than act

As

does not begin until the return of the debtor to such a plaintiff the running of the statute or trespasser to this country, so that proceedual concealment. See review of cases as to con-ings against him become possible. It is easy cealment by fraud, in note to Shellenberger v. Ransom (Neb.) 25 L. R. A. 564.

to see that the mischief which the statute was intended to remedy was delay in the asser

Sce also CS L. R. A. 826.

him, is not within the mischief the statute was intended to remedy, but is within the spirit of the proviso that restrains its operation. Courts of equity go a step further still, and decline to apply the statute where the plaintiff neither knew, nor had reasonable means for knowing, of the existence of a cause of action. But if the cause of action be known, or might have been known by the exercise of vigilance in the use of means within reach, equity follows the law and applies the statute. Hamilton v. Hamilton, 18 Pa. 20, 55 Am. Dec. 585; Neely's App. 85 Pa. 387. Mere ignorance will not prevent the running of the statute in equity any more than a law; but there is no reason, resting on general principles, why ignorance that is the result of the defendant's conduct, and not of the stupidity or negligence of the plaintiff, should not prevent the running of the statute in favor of the wrongdoer.

tion of a legal right which it was practica | one who cannot assert his right, because the ble to assert. The remedy provided was a necessary knowledge is improperly kept from denial of process to one who had slumbered for six years during which process was within his reach. The cases in which this denial would work a positive and an apparent hardship, so far as they were foreseen by the lawmakers, were provided for by the exceptions to which we have referred and by the Act of 1842. These have been extended by the courts so as to include other cases which, while not within the letter of the statute, were held to be within the spirit of the proviso. Thus, it was held in Hall v. Vandegrift, 3 Binn. 374, that "it is the spirit of the statute of limitations to allow twenty-one years from the time that a person might make entry on land and support an action" before taking away his remedy. For this reason it was decided that it did not run against one who had a possibility of title, but no present right of entry. Again, it was held that, when the plaintiff had been kept in ignorance of his rights by fraudulent practices on the part of the defendant, the statute did not begin to run against him until discovery of the fraud.

It seems to be a general doctrine in courts of law that the plaintiff is bound to know of an invasion of the surface of his close. The fact that his land is a forest, and that the The earliest case I have found in which defendant goes into its interior to trespass by the courts of this state applied this doctrine the cutting of timber, does not relieve against in a common-law action is Jones v. Rees, its operation. What is plainly visible he found in 1 Smith's Laws, p. 80. The case must see at his peril, unless, by actual fraud, was tried at circuit before Yeates and Smith, his attention is diverted and his vigilance Justices. It appeared that Rees had sold a put to sleep. But ought this rule to extend negro to Jones in 1786, alleging him to be a to a subterranean trespass? The surface is slave. The negro was in fact a freeman, but visible and accessible. The owner may know had been kept in ignorance of it by the fraud- of its condition without trespassing on othulent practices of Rees. He discovered the ers, and for that reason he is bound to know. fraud and his own freedom in 1801, and The interior of the earth is invisible and inbrought an action against Jones for the pur- accessible to the owner of the surface, unpose of having his freedom established in a less he is engaged in mining operations upon court of law, and of recovering damages for his own land; and then he can reach no part his deprivation of it. He recovered. Jones of his own coal stratum except that which he then brought an action against Rees to re- is actually removing. If an adjoining landcover the price paid for the negro some six-owner reaches the plaintiff's coal through teen years before, and for damages. Rees set subterranean ways that reach the surface on up the statute of limitations. The court re- his own land and are under his actual confused to sustain the plea, giving as a reason trol, the vigilance the law requires of the there for that, "whenever there is a fraud, the plaintiff upon the surface is powerless to act of limitations is no plea, unless the fraud detect the invasion by his neighbor of the be discovered within the time;" that is, with-coal 100 feet under the surface. in the time fixed by the statute, or six years before suit brought. To make this entirely clear, it was added that, "while the slavery of the negro was uncontested, the plaintiff had no ground to suppose he had been in jured or deceived; but, when he obtained his liberty in a due course of law, the plaintiff's cause of action accrued against the defend

ant."

The case at bar affords an excellent illustration of ignorance due to the defendant's conduct, and without fault on the part of the plaintiff. The defendant was mining its own coal through its own shafts or drifts opened on its own lands. In the course of its operations, and for its own convenience, it pushed an entry or passage under the plaintiff's lands, and appropriated the coal removed This rule was applied in an action of eject- therefrom. It was bound to know its own ment in Thompson v. Smith, 7 Serg. & R. lines, and keep within them. If, by mistake 209, 10 Am. Dec. 453, and was stated by or for any other reason, it did invade the Tilghman, Ch. J., at page 214, as follows: mineral estate of another, and remove and "After the discovery of the fraud, a mau has appropriate the coal therefrom, good cona right to avail himself of the statute; but science required that it should disclose the so long as the fraud is unknown, pending the fact, and pay for the coal taken. Its failconcealment of the fraud, the statute ought ure to do this is, in its effects, a fraud upon not to run. The discovery of the fraud gives the injured owner; and if he has no knowla new cause of action." This rule has long edge of the trespass, and no means of knowlbeen applied in equity, where two good rea-edge, such a fraud, whether it be called sons are given for it. The first is that it would be inequitable to permit a defendant to profit by his own fraud. The other is that

constructive or actual, should protect him from the running of the statute. We have felt constrained to recognize the susceptibil.

ity of land to division into as many estates in fee simple as there are strata that make up the earth's crust, and to protect the own ers of these separate estates from each other. Thus, the possession of one who has a title to the surface only does not extend to or affect any subjacent estate. The occupancy of a coal stratum for more than twenty-one years will not give title to the surface above it, or the oil or gas stratum below it. The law does not require impossibilities. It recognizes natural conditions, and the immutability of natural laws. The owner of the surface cannot see, and because he cannot see the law does not require him to take notice of, what goes on in the subterranean estates below him, with which he has no communication through openings within his inclosures or under his control. On the other hand, one who is in possession of a lower stratum is not bound to know, nor can he be affected by, what is going on upon the surface above him, or in a still lower estate under his feet. The owner of each stratum must, however, take notice of what affects his own estate so far as he is in possession of or has access to it. In the case before us no severance of the coal from the surface has taken place. The title of the plaintiff extends from the surface to the center, but actual possession is confined to the surface. Upon the surface he must be held to know all that the most careful observation by himself and his employés could reveal, unless his ignorance is induced by the fraudulent conduct of the wrongdoer. But in the coal veins, deep down in the earth, he cannot see. Neither in person nor by his servants nor employés can be explore their recesses in search for an intruder. If an adjoining owner goes beyond his own boundaries in the course of his mining operations, the owner on whom he enters has no means of knowledge within his reach. Nothing short of an accurate survey of the interior of his neighbor's mines would enable him to ascertain the fact. This would require the services of a competent mining engineer and his assistants, inside the mines of another, which he would have no right to insist upon. To require an owner, under such circumstances, to take notice of a trespass upon his underlying coal at the time it takes place, is to require an impossibility; and to hold that the statute begins to run at the date of the trespass is in most cases to take away the remedy of the injured party before he can know that an injury has been done him. A result so absurd and so unjust ought not to be possible.

by the statute in equity precisely as he would have been at law. If he knew, or if by the exercise of reasonable care he might have known, of the trespass, the statute ran from the discovery, or the time when discovery could have been made. Bainbridge, Mines, 515, 516. It was against good conscience to permit one who had taken the property of another without the owner's knowledge, and who had failed to disclose or to account for what he had taken, to avail himself of the statute while the owner remained in ignorance of his loss. When compensation was sought by means of a bill for an account, it was held that the statute began to run at the time of discovery, regardless of the time of taking. The same question was also encountered in actions to recover for injuries done on the surface by subsi dence due to the withdrawal of support. When the action was trespass, it was generally held that the statute ran from the dato of the removal of the support, which was the trespass to which the injury was due; but, when the action was case, the subsidence was treated as the consequence of the wrongful removal of the coal or other underlying stratum, and the damages suffered as consequential. The happening of the injury was upon this ground held to give a cause of action, against which the statute would run only from its date. The removal of the supports might not be known to, or be discoverable by, the owner of the surface until the subsidence revealed it; and, unless the injury consequential to the trespass could be treated as creating a cause of action, in most cases redress for a substantial injury would be denied altogether. Backhouse v. Ronomi, 34 L. J. Q. B. 181, 9 H. L. Cas. 503; Smith v. Thackerah, 14 Am. L. Reg. (vol. 5, N. 8.) 761, and note. The reason for the distinction exists in the nature of things. The owner of land may be present by himself or his servants on the surface of his possessions, no matter how extensive they may be. He is for this reason held to be constructively present wherever his title extends. He cannot be present in the interior of the earth. No amount of vigilance will enable him to detect the approach of a trespasser who may be working his way through the coal seams underlying adjoining lands. His senses cannot inform him of the encroachment by such trespasser upon the coal that is hidden in the rocks under his feet. He cannot reasonably be held to be constructively present where his presence is, in the nature of things, impossible. He must learn In the English courts this question has of such a trespass by other means than such arisen quite frequently. The old rule ap- as are within his own control, and, until plied in the courts of law was that the stat these come within his reach, he is necessarily ute might be successfully pleaded as running ignorant of his loss. He cannot reasonably from the date of the trespass. In the courts be required to act until knowledge that acof equity, where an account for the coal that tion is needed is possible to him. We are had been taken was asked for, it was applied disposed to hold, therefore, that the statute only from the discovery of the trespass. runs against an injury committed in or to a MacSwinney, Mines, 543. See also, Iloven- lower stratum from the time of actual disden v. Lord Annesley, 2 Sch. & Lef. 634. If, covery, or the time when discovery was rea after discovery, or the happening of any cir-sonably possible. But it is enough for the cumstances calculated to put the owner on notice, he slept on his rights till the stat utory period had expired, he was held bound

purposes of this case to hold that, inasmuch as equity is administered in this state through the common-law forms of action, the plain

FLORIDA SUPREME COURT.

APPEAL by defendant from a judgment of the Florida Savings Bank one year after the the Circuit Court for Duval County in date thereof; that defendant, at the time and favor of plaintiff in an action brought to re- place named for the payment of said note, cover the amount alleged to be due on a prom-had the amount of money ready to pay the issory note. Affirmed.

same and interest thereon, and would have paid the same upon the presentation of said note, but that the same has never been pre

Judgment was obtained in the circuit court sented for payment at the place named. For

second plea defendant says that ever since said note became due he has had the amount NOTE.-The question of waiver by subsequent named in said note, and interest, at the place payment of interest of a maker's defense to a note named therein, and has been ready and willthat he was at all times ready to pay but that no demand was made at the time and place of pay-said note was never presented for payment; ing to take up and pay the same, but that ment seems to be a novel one. On the general but instead thereof the plaintiffs has always subject of demand of payment of a negotiable note, Bee Rosson v. Carrol (Tenn.) 12 L. R. A. 727, and declined presenting the same for payment, note; Turner v. Iron Chief Min. Co. (Wis.) 5 L. R. A. and requested payment of the interest on said note semi-annually, which was always

promptly paid. And this defendant now | place, and that the holder was not there to makes profert of the amount due on said note, and pays the same into court. A demurrer was sustained to the pleas, and defendant declining to further plead, judgment was rendered against him for $1, 139.42 and costs

receive the money. The theory of the American courts is, that the maker of the note, being the principal debtor, is still liable to pay, though the note be not presented at the time and place designated for payment, and of suit. that it devolves upon him to show as a matCounsel filed in the circuit court an agree-ter of defense a readiness with the money at ment in reference to the principal of the note the time and place to meet the note, and such paid into court by the defendant, but no state-defense must be set up by plea and can only ment of its contents need be made here. be in bar of damages and costs. Such a plea,

As appears from the record, the only ques-in order to be available, must allege that the tion presented is whether the court erred in maker was ready to pay the money at the sustaining the demurrer to the pleas.

Mr. R. B. Archibald for appellant.
Mr. John E. Hortridge for appellee.

Mabry, Ch. J., delivered the opinion of the court:

It is now the accepted doctrine in the United States that in a suit against the maker of a promissory note, payable at a particular time and place, it is not necessary to allege in the declaration a presentation for payment at the place named, or to prove such presenta tion at the trial in order to entitle the plaintiff to recover on such a note. What was the English rule on the subject prior to the decision in Roe v. Young, 2 Brod. & B. 165, rendered in 1820, is uncertain, as there was great diversity of opinion on the subject among English judges. It was at that time decided by the house of lords that if a bill of exchange be accepted, payable at a particular place, the declaration must aver presentment at that place, and the averment must be proved. It seems that prior to that time the king's bench had followed the rule now accepted by the American courts. In 1839 the Supreme Court of the United States decided, in the case of Wallace v. McConnell, 38 U. S. 13 Pet. 136, 10 L. ed. 995, that in an action against the maker of a note, pay able at a particular time and place, no demand for payment need be averred or proved; and since that decision the American courts have been practically unanimous in holding the same doctrine. Reeve v. Pack, 6 Mich. 240; Montgomery v. Tutt, 11 Cal. 307; Caldwell v. Cassidy, 8 Cow. 271; Wolcott v. Van Santwoord, 17 Johns. 248, 8 Am. Dec. 396; Hills v. Place, 48 N. Y. 520, 8 Am. Rep. 568; Payson. Whitcomb, 15 Pick. 212: Carley Vance, 17 Mass. 389; Lyon v. Williamson, 27 Me. 149; Armistead v. Armisteads, 10 Leigh, 526; Washington v. Planters Bank, 1 How. (Miss.) 230, 28 Am. Dec. 333; Yeaton v. Berney, 62 111. 61; Humphreys v. Matthews, 11 III. 471; Ripka v. Pope, 5 La. Ann. 61, 52 Am. Dec. 579; 3 Randolph, Com. Paper, §1117; Story, Prom. Notes, § 228, and notes; Tiedeman, Com. Paper, $ 310.

time and place named; that he has ever since been ready there to pay the note, and that he brings the money into court for the plaintiff. Carley v. Vance, and Lyon v. William

son, supra.

The first plea of the defendant below was clearly demurrable. It goes no further in its allegations than that the defendant, at the time and place named for the payment of the ntoe, had the money ready to pay the same and interest thereon, and would have paid the same had it been presented for payment, which had never been done. It does not make a tender of the money in court, nor does it allege that defendant had, ever since the note matured, been ready with the money to pay. It falls far short of the requisites of a good plea setting up such a defense. Forcheimer v. Holly, 14 Fla. 239.

The second plea is more extensive in its allegations. It alleges that ever since the note became due defendant had the amount of money named therein and interest, at the designated place of payment, and had been ready and willing to pay the same, but the note was never presented for payment; that plaintiff had always declined to present the note for payment, and requested payment of the interest thereon semi annually, which was always promptly paid. Profert of the amount due on the note was made and paid into court. Conceding that the allegation as to the profert in curia, in reference to which there is no contention here, is sufficient, it is evident that the second plea is good under the rule of pleading above stated, unless the averment relating to the payment of interest after maturity of the note renders it bad. It is insisted for appellee that the payment of interest on the note after it matured, as alv.leged in the plea, was a waiver by the maker of any defense that he might have set up by reason of a failure on the part of the holder to present the note for payment, and the rule as to a waiver of protest and notice by payment, or promise to pay, on the part of an indorser of a note, is invoked. The rule is well settled that a payment on a note, or a clear and explicit promise to pay it after maturity, by an indorser, with full knowledge of the fact that it had not been presented for payment, operates as a waiver of such presentation and protest. Whitaker v. Morrison, 1 Fla. 29, 44 Am. Dec. 627; Curtis v. Sprague, 51 Cal. 239; Salisbury v. Renick, 44 Mo. 554; Hughes v. Bowen, 15 Iowa, 446; Smith v. Curlee, 59 Ill. 221. The principle upon which the maker of a note is held liable is not exactly the same as that applicable to the liability of an indorser. The maker is

While the American courts uniformly hold that in a suit on a note against the maker it is unnecessary for a plaintiff to aver a presentation of the note for payment at the time and place designated for that purpose, it must not be supposed that the maker can not set up as a matter of defense, so far as costs and damages are concerned, the fact that he was prepared with funds and ready to make payment of the note at said time and