the drawer's signature? Why not compel the holder to consult the drawer about that? Why not restrict the inquiries, which the bank is bound to answer at its peril, to the only one necessarily within its knowledge, namely, the state of the drawer's account? If the bank is turned into an expert of handwriting, against its will, as to the maker's signature, why may it not also be as to the filling up? Still the doctrine contended for by the appellant is sustained by some remarks in Espey v. First Nat. Bank of Cincinnati, infra.

Again, it is urged that it is against public policy to charge the banks with such a duty and consequent liability; that it would lead to a suspension of this mode of transacting business. We are inclined to believe that the banks would prefer to take the risks of such a rule than to count out the $150,000,000 every day.

Now, on the other side it is argued :

1. The certification was an original undertaking to pay the check. It operates not as a promise to pay the debt of another, but as an engagement of the bank to pay the debt as its own.

To this point are cited: Mead v. Merchants' Bank, 25 N. Y. 143; Nassau Bank v. Broadway Bank, 54 Barb. 242; and Willetts v. Phoenix Bank, 2 Duer, 130, 132, which seem to sustain the proposition.

2. The certification binds the bank to retain the apparent amount out of the drawer's account to meet the check when presented, and to pay it to the holder on demand; and as between the bank and an innocent holder, the bank is bound to pay that amount although the account of the drawer may turn out not good for it.

To this are cited: Farmers & Mechanics' Bank v. Butchers and Drovers' Bank, 16 N. Y. 125; First National Bank v. Leach, 52 N. Y. 350; and Cooke v. State National Bank, 52 N. Y. 115, which warrant the proposition, in cases of genuine checks, no question of alteration intervening.

3. Certification is equivalent to payment. Citing Smith v. Miller, 43 N. Y. 171, 176, which does not decide this point, although it remarks it, and we are not prepared to say that it is not good law.

4. Certification exonerates the maker, and the holder can look to the bank alone for payment. First National Bank v. Leach, 52 N. Y. 350, certainly bears out this proposition.

5. By the certificate the bank issues the instrument to the world as an obligation of its own, and guarantees the instrument as money to the extent of its apparent amount.

In Merchants' Bank v. State Bank, 10 Wall. 648, it is said that certification of a check "is an undertaking that the check is good then, and shall continue good, and this agreement is as binding on the bank as its notes of circulation, a certificate of deposit payable to the order of the depositor, or any other obligation it can assume. The object of certifying a check, as

regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the bank. It is available also to him for all the purposes of money."

We believe we have thus substantially presented the principal arguments on both sides. It only remains to observe upon the case of Espey v. First National Bank of Cincinnati, 18 Wall. 604, 9 A. L. J. 287, which is claimed by both parties as an authority in their favor. That case was similar to those we have been considering, except that there was no formal certification; the payee sent the check to the bank for information, and the teller orally replied that it was good, or all right. On this state of facts it was held that the bank did not guarantee the genuineness of the filling-up; that unless there is something in the terms of the inquiry that directs the attention of the bank beyond the drawer's signature and the state of his account, his response that the check is good will be limited to them. The decision was put exclusively on the ground that there was nothing to show that the bank had any reason to suppose that the payee made the inquiry for any other purpose than his own information. So we do not see how this case can be claimed as an authority for the appellant. On the other hand, the court observe that it is to be noticed that the bank was not asked to certify the check, and they do not propose to consider the legal effect of certification under such circumstances. They then continue:

"Where the object is to use the indorsement to put the check in circulation, or raise money on it, or use it as money, and this object is known to the certifying bank, it may be argued with some force that the bank should, as in the case of an acceptance of a bill of exchange, be held responsible for the validity of a check as it came from the hands of the certifying bank. Such a rule would seem to be just when checks are certified, as we know they often are, without reference to the presence of funds by the drawer, and when the well-known purpose is to give the drawer a credit by enabling him to use the check as money, by putting it in circulation.

But such a verbal statement as was made in the present case cannot come within that principle. There was no design or intent on the part of the bank to assume a responsibility beyond the funds of the drawer in their hands, nor to enable the payee of the check to put it into circulation. Nothing was said or done by the bank officer which could be transferred with the check as part of it to an innocent taker of it from the payee."

This language, however, is clearly obiter, and we do not see how the case can be claimed as an authority in favor of the respondent. The language quoted, however, presents a very cogent and authoritative argument in favor of the respondent's theory. It would certainly seem that when the bank, instead of

orally saying, "the check is good," are asked to certify it and do so, they understand that the check is about to be put off to innocent holders, and that they are guaranteeing it as an issue of their own to the extent of its apparent amount.

LANDS. II.

The right to support only extends to the soil itself, and does not include any thing placed thereon that sensibly increases the pressure,* nor does it exist after the owner has removed the soil, and substituted a wall or other artificial substitute therefor. This right to support from neighboring soil exists ex jure naturæ, and not as an easement, although it partakes of the nature of an easement, and is frequently claimed as such, both by elementary writers and courts. Bramwell, B., in Rowbotham v. Wilson, says: think it inaccurate to say that the plaintiff is claiming any kind of easement, qualified or otherwise; an easement seeming to me to be something additional to the ordinary rights of property." But it will not be profitable for us to discuss this question here. The right exists, and, whether it is to be regarded as an easement or a natural right, is a question of small consequence.

"I

It must not be understood that the right to support ceases to exist when the land is incumbered with a

building or other erection. It is true that the right extends only to the soil itself, but it is by no means restricted, as is stated by some of the elementary writers, to "the land in its natural state." It exists only as to the soil, but, however the soil may be incumbered with buildings or other structures, unless they contribute directly to the injury, a right of action exists for an interference with the right, precisely as much with as without the buildings. Indeed I think the cases will justify the broad statement, that in actions for injuries to the right of support, where, liability is sought to be avoided, on the ground that there are erections on the plaintiff's land that contributed to the injury, that it is incumbent upon the defendant to make out his defense by clearly establishing the fact, that the injury would not have resulted except for the erections. In other words, that the pressure

Stansell v. Jollard, Selw. N. P. 444; Wyatt v. Harrison, 3 B. & Ad. 871; Partridge v. Scott, 3 Mees. & Wels. 220; Humphries v. Brogden, 12 Q. B. 744: Solomon v. Vinters Co., 4 H. & N. (Exch.) 585; Murchie v. Black, 34 Law. J. (C. P.) 337.

+ Wilde v. Minsterley, 2 Rolle's Abr. Trespass I, pl. 1; Thurston v. Hancock, 12 Mass. 220; La Sala v. Holbrook, 4 Paige's Ch. (N. Y.) 167; Richardson v. Vermont Central Railroad Co., 25 Vt. 465, opinion of Bennett. J.; Hay v. Cohoes Co., 2 N. Y. 159.

Rowbotham v. Wilson, 8 E. & B. 136; Bonomi v. Backhouse, E. L. & Eq. 622; Thurston v. Hancock, ante.

Gale on Easements, 148.

I Washburn on Easements, 431; Gale on Easements, 311. Foly v. Wyeth, 2 Allen (Mass.), 131; Hunt v. Peake, Johns. Ch. (Eng.) 705; Thurston v. Hancock, 12 Mass. 220; Brown v. Robbins, H. & N. (Exch.) 188.

if the pressure of the weight of artificial structures which the owner has placed upon his own land for a lawful purpose, and in its reasanable use contributes to cause a slide or crumbling away of his soil into a pit excavated in an adjoining close by another proprietor, this will deprive him of the right to remunerleast open to denial." ation, for the injury sustained may be considered at

In Brown v. Robbins, referred to in the previous note, the action was for injury to the plaintiff's lands and buildings by reason of excavations beneath the premises, causing a subsidence of the soil, and a consequent injury to the buildings. A question was raised by the defendant, that he was not liable if the house contributed to the injury; and the judge, among other things, submitted the question to the jury, "whether the land fell from the superincumbent weight of the house, or whether it would have fallen

in the same manner whether there had been a house upon it or not." The jury found that the weight of the house did not contribute to the injury, and returned a verdict of £300 for the plaintiff. Upon a Pollock, C. B., said: rule to show cause, etc., in the court of exchequer, "As to the right of support for the house, quâ house, if necessary to decide it, which it is not, I should be disposed to hold that the plaintiff was entitled to the support of the surrounding ground. But the moment the jury found that the subsidence of the land was not caused by the weight of the superincumbent buildings, the existence of the house became unimportant in considering the question of the defendant's liability. It is as if a mere model stood there, the weight of which bore so small a proportion to that of the soil, as practically to add nothing to it." Martin, B., said: "There is no ground for reversing the verdict. The house was lawfully on the plaintiff's land, and was injured by the unlawful act of the defendants." Watson, B., said: "When a great weight is put on the land, which immediately causes a pressure upon the adjoining lands, a nice question sometimes arises; but here every thing was determined by the finding of the jury, that the accident was not caused by the weight of the house, and that this weight has no effect in causing a subsidence of the soil."

This case establishes the principle fully, that the mere pressure upon land of a superincumbent weight, as buildings, or any thing else, does not prevent a recovery for an interference with the right of support, where the superincumbent weight does not contribute to the injury; and that in such a case a recovery may

decided, and the latter authorities disclose a tendency of the courts in that direction.

cause, does not operate as a defense. It is true that the verdict established that the buildings did not contribute to the injury, but the verdict was clearly wrong; for no person could doubt that every pound of additional weight imposed upon the surface of the soil, increased the vertical and lateral pressure, and that the weight of several thousand pounds, such as would be likely to be imposed even by the most ordinary buildings, would, in a measure, contribute to the subsidence of the soil beneath them, and that a much slighter removal of the soil would be followed by a subsidence thereof, with the buildings upon the surface, than without them; yet the verdict was sustained, and the court even intimate that without such a finding of the jury, liability would exist. Indeed, upon the argument, Pollock, C. B., put this pertinent inquiry to the counsel: "Has a person a right to dig so near to the land of his neighbor as to disturb his soil, whether there is a house there or not?"

A distinction exists between an injury to the soil and an injury to the wall or other structure erected in lieu of it. In the case of a building erected upon the surface of the soil where no excavation has been made for a foundation, a removal of the support of the adjoining soil would be actionable, notwithstanding the presence of the building, if any injury to the soil thus left unsupported followed, even though the excavation was made in the exercise of the highest care and skill possible. In such cases where no excavation has been made and no artificial support has been substituted for the soil, and the adjoining owner excavates so near to his neighbor's line as to disturb his soil at his peril, it is an interference with a natural right, and a nuisance, and liability attaches whether the digging was accompanied with negligence or not.* If by the increased weight imposed upon the soil by the building the damage is enhanced, this does not defeat liability for such damages as would have arisen if no building had been placed there, but only such as are the direct results of the pressure of the building.

This precise question has not been directly

Thurston v. Hancock, 12 Mass. 220; Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., id. 164; Strowman v. Knowles, 6 H. & N. (Exch.) 454; Hamer v. Knowles, 6 id. 459.

Richardson v. Vermont Central Railroad Co., 25 Vt. 465. In this case Bennett, J., says: "If there is any error in the

In Hamer v. Knowles, 6 H. & N. Ex. 459, the action was brought by a tenant of certain mills for damages sustained by a subsidence of the soil and mills by reason of the removal of minerals beneath the adjoining lot. The action was referred, and the referee found that the subsidence of the ground resulted from the mining operations, and assessed the damages at £1,590, as follows: £90 for the damage to his business, and £1,500 for deterioration of the value of the buildings and premises. Upon hearing the cause in the Court of Exchequer the defendant's counsel in

In this case, as the case shows, the principal damage arose, not from the removal of the minerals beneath the mill, but beneath the adjoining lot, at some distance from the plaintiff's premises, and the subsidence of the soil was gradual, and covered a considerable period after the acts from which the damage arose had been done, during all of which time the mills were in operation, and from the circumstance that the arbitrator only found the injury to the plaintiff's business to be £90, it is evident that no great hindrance in that respect was shown. The principal injury was to the buildings by reason of the subsidence of the soil, which the arbitrator says ".continued from time to time in consequence, of the previous mining operations." It is true that the arbitrator found that the weight of the buildings did not contribute to the injury, but it is quite difficult to understand how such a finding could be sustained when the subsidence was gradual, and the weight of the buildings and machinery of such extensive works must have been enormous, and where the motion and constant jarring of the machinery of extensive works must, in a measure, have contributed to the damage. But, irrespective of this question, this case is a full authority in support of the doctrine that where there is a wrongful withdrawal of the support of the soil, even in an adjacent lot at a great distance from the point of injury, a recovery may be had for injuries to the buildings and other structures upon the surface of the soil, where they do not contribute to the injury; and it would seem from the facts in the case, that it fairly

decision of the case in the 12th Mass. (Thurston v. Hancock) it is, I apprehend, to be found in the courts not discriminating between the soil that fell into the excavation from its own inherent weight, and that which was pressed in by the building." Foly v. Wyeth, 2 Allen (Mass.), 131; Brown v. Windsor, 1 C. J. Am. Notes; 2 Davis' Ab. 717; Tarrant v. Marshall, 19 Barb. (N. Y. Sup. Ct.) 380.

*Brown v. Robbins, 4 H. & N. 186.

warranted the doctrine that there may be a recovery for injuries to all structures upon the soil, when they are not the promoting or principal cause of the injury. That, whenever injury would have resulted if no buildings existed, a recovery may be had, even though they, in a measure, contributed thereto and hastened it. If not in theory, that is certainly the practical effect of all the cases, and sustains the doctrine hinted at by Merrick, J., in Foly v. Wyeth. It is an easy matter for courts to say, as in Hunt v. Peake, that the weight of a building would make no perceptible increase in the pressure of the soil, and for jurors and arbitrators to find in cases for damages in consequence of the subsidence of the soil covered by buildings whose weight is many thousand pounds, and where the subsidence is gradual and covers a long period after the support is withdrawn, that the weight of the buildings have not contributed to the injury; but common sense teaches every person that such findings are erroneous, false even, and only used as a cover for verdicts or judgments that accord with the sympathies of the triers, and their notions of the actual equities of each case, and that the only remedy for such evils is the establishment of the broad doctrine, which is sustained both in reason and equity, that a recovery may be had in all such cases where the superincumbent weight is not the principal cause of, even though it has in a measure contributed to the injury, where the owner has not removed his own soil so as to deprive him of this natural right. In Farrand v. Marshall, 19 Barb. (N. Y. Sup. Ct.) 380, which is a well-considered case and entitled to great weight as an authority, Harris, J., in the course of his analysis of the case of Thurston v. Hancock, 12 Mass 220, thus gives expression to his views upon the law as applicable to the facts of that case; and while this expression is in no measure an authority, yet as the expression of an able and eminent jurist, it shows the strong tendency of courts toward a more consistent and equitable construction of the legal relations of adjoining land owners, than is to be found in the dicta of Rolle: "A man who himself builds a house adjoining his neighbor's land (says Parker, C. J., in Thurston v. Hancock), ought to foresee the probable use by his neighbor of the adjoining land, and by a convention, or by a different arrangement of his house, secure himself against future interruption and inconvenience." Referring to the doctrine of Rolle, he says: "We have not been able to discover that the doctrine has ever been overruled, nor to discover any good reason why it should be." The case itself was probably decided erroneously. Under the circumstances, as they appeared in evidence, I do not think the plaintiff was chargeable with any fault or negligence. He had taken the precaution to sink the foundation of his house fifteen feet below the natural surface. The defendant had dug and removed the soil upon his adjoining lot to the depth of forty-five feet. The result was

that the plaintiff was obliged to take down his house to save the materials. No fault or negligence was imputable to the plaintiff; every reasonable precaution had been observed. On the contrary, the defendant was not using his land for any ordinary purpose. The plaintiff had sufficiently guarded himself against any ordinary use of the adjacent land, and it seems to me that the action ought to have been sustained." By the Roman law, no proprietor was permitted to excavate on his own land so as to endanger his neighbor's building, and every person erecting a new building was bound to place the new structure a certain distance from his neighbor's boundary. This rule, however, in its full extent, would hardly be adapted to the present condition of things, particularly in large cities and towns, where every inch of space is made available, and is indeed necessary to supply the demands of business. In Hunt v. Peake, supra, the court, in commenting upon the idea that no recovery could be had for an injury to support, where the land was incumbered with buildings, thus ridicules the doctrine and exposes its folly. Wood, C. J., says: "In fact, the weight of such houses would bear about the same proportion to that of two hundred feet of soil which a chimney-pot bears to a house; and it would really be absurd to suppose that the extra load of the house was the thing which caused the ground to yield for want of support." In a case in Kentucky,* it was held that a division fence between two adjoining land owners was not to be treated as an increased burden to the land, and that it was entitled to support as much as the land. This decision was placed upon the ground that a fence between adjoining lots is a necessary incident to the exclusive enjoyment of each owner of his own lot, and that it could not be regarded as a sensible increase of the burden to be supported. But suppose the fence to be a heavy stone wall, who can doubt that it would add essentially to the pressure upon the soil? The same principle that permits a division fence upon land would extend to buildings and all other structures that are essential to the actual enjoyment of the land. In Wyatt v. Harrison, 3 B. & Ad. 871, it appeared that the plaintiff and defendant were the owners of adjoining lots, upon both of which houses had been erected. The defendant rebuilt his house, and in so doing sunk the foundation thereof; and as a result the plaintiff's foundation wall was cracked and injured. It does not appear that the plaintiff's soil was interfered with, nor does the declaration in the case allege that as a cause of action or ground for damages. But it was for the injury to the wall and building by withdrawing the support of the defendant's soil. Lord Tenterden, C. J., said: "It may be true that if my land adjoins that of another, and I have not, by building, increased the weight upon my soil, and my neighbor digs in his land so as to occasion mine to fall in, he may be liable to an action.

* O'Niel v. Haskins, 4 Bush. (Ky.) 653.