author: Mr. Justice Trunkey

text:
    Wirebach’s Executor versus First National Bank of Easton.
    1. An accommodation endorser of a promissory note, who receives no benefit therefrom either to himself or his estate, may defend against a bona fide holder on the ground that he was non compos mentis at the time of the endorsement ; and this though the holder had at the time of the transfer to him no knowledge of the endorser’s lunacy.
    2. iraud is not to be inferred from the mere fact of a person, weak both in body and mind, indorsing for accommodation.
    3. The fact that a person drawn as a juror is the second cousin of the husband of a daughter and legatee of the defendant’s decedent constitutes good cause for principal challenge by the plaintiff'. But if the plaintiff challenge said juror to the favor and by agreement of the parties triors be dispensed with and the question be submitted to the court, its decision rests upon the court’s conscience and discretion and is not reviewable.
    4. ' Kind of evidence the admission or rejection of which is most properly left to the discretion of the court below, commented on.
    April 1st 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Northampton county: Of January Term 1881, No. 78.
    Assumpsit, by the First National Bank of Easton, Pa., against Ilrbanus Wirebach, surviving executor, &c., of Jacob C. Wirebach, deceased, upon a promissory note, dated December 7th 1876, for $10,075.92. drawn by Richards & Christman to the order of Jacob C. Wirebach and endorsed by him.
    When the case was called for trial, before Meyers, P. J., one Daniel E. Richards was drawn as a juror. Being examined on his voir dire (the appointment of triors being waived by agreement), ho testified that he was second cousin of Daniel W. Richards, a son-in-law of Jacob C. Wirebach. The plaintiff thereupon challenged him to the favor, and the court sustained the challenge against the objection of the defendant. Exception.
    The evidence showed the following facts: The note in suit was given December 7th 1876, to take the place of eleven promissory notes, dated in January 1876, held by the said bank, of which W. U. Stocker & Co. were the makers. On some of these notes, amounting to $4700, Joseph Richards, Charles Christman and Jacob O. Wirebach were joint accommodation endorsers, and on the rest of said notes, amounting to over $5000, Joseph Richards and Charles Christman only were accommodation endorsers. Charles Christman, called by the defendant, testified that at the time this arrangement was entered into one or more of the Stocker notes, on which Richards and Christman were the sole endorsers, had gone to protest and others were about to fall due ; that Stocker & Co. were in failing circumstances; that he, Christman, made the proposition, to Mr. Forman, the president of the bank, to give a single new note drawn by Richards & Christman, and endorsed by Wirebach, in place of the eleven old ones, as it would be more convenient to pay the discount on one note and at one time than to pay. at different times on a series of renewals; Mr. Forman said they would take a - new note with Wirebach as endorser. Christman then had an interview with Wirebach, which he described thus: “ We talked the matter over and something was said about the notes having gone to protest, and then I asked him whether he would go as endorser and we as makers of the note — Richards and I — and he agreed to it, and I said that Mr. Forman would give us a couple of years’ time if we held the note good, and I told him that. He said he would do it — go our endorser, provided his family should know nothing about it; and i mentioned the day when I would be over, and he should come along to the bank. Mr. Forman said I should try and bring him along, so that he could sign the note there in the bank.”
    On the appointed day Christman and Wirebach met, as agreed on, and drove to the bank. The president explained to Mr. Wirebach about the transaction and discount, and produced the note, which was then executed by Wirebach as accommodation endorser, and the other notes handed over to Christman.
    Christman further testified on cross-examination: Q. Did it appear to you, at the time the note was executed, Wirebach had the palsy? Objected to. Objection overruled. A. That I couldn’t say. I was examined in this case before. Maybe I did say I considered he had the palsy. I said his speech was certainly not the same; he couldn’t talk very easy.. Very likely I did say 1 could see he was suffering with palsy. Likely 1 did say on the former trial that anybody who knew anything about him could see he was suffering with palsy. I said I had seen him write before he was afflicted with the palsy. I said now I thought he had palsy then, but his speech was thick on that day. I had known him a good many years. He was very different from what he had been some years before. When lie signed the note nobody steadied his hand. I had seen him write before. Ilis hand was tremulous that day. He walked weakly. He had a cane, lie did not walk like he used to walk years before. He walked by himself up the bank aisle. There are some steps in the bank ; he walked up those steps himself. It was talked that ho would fix it all in one note. I told Mr. Wirebach for one. Forman had the note read, and told me to sign it first, then Wirebach. I can’t say whether Forman showed the old man or not where to sign it. He signed on two places. He was the accommodation endorser. One of the notes was protested and a couple would be protested in a couple of days' — that is, the Stocker notes would be protested. Stocker & Co. were good for nothing. Forman filled up the note. I think it was filled up before he got there. It was said he should go on the note until we could sell the Stocker property and raise money. I think he put glasses on when he signed the note. We were in the bank fifteen or twenty minutes.”
    Much evidence was produced by the defendant in support of the claim that Wirebach, at the time of the execution of the note, was non compos mentis', and that his appearance and general manner was such that no one transacting business with him at the date of the note in suit could fail to observe his physical weakness and mental imbecility. It -was shown that he was seventy years of age; that he had an attack of paralysis in 1872 or 1878, a second attack in 1875, and a third attack after the.date of the note, from the effects of which he died in May 1877. There was some evidence that he suffered from delusions, loss of memory and inability to comprehend ordinary business transactions.
    The evidence as to the degree to which Wirebach’s appearance and manner were affected by his malady, and the effect thereby produced on his acquaintances and others as to his sanity and business capacity, was very conflicting. Several witnesses testified that they saw Wirebach and transacted business with him up to the day before the note was signed; that they saw that his face was distorted, but he appeared perfectly rational and capable of contracting intelligently, and that there was nothing to indicate that he was of unsound mind. Other witnesses testified to a contrary effect.
    The defendant presented, inter alia, the following points:—
    1. If the,jury believe that at the time of the execution of the endorsement in suit Jacob C. Wirebach was a man of unsound mind, and by reason of mental unsoundness was unfit to transact business or make a contract, the verdict must be for the defendant. Ans. “ Not affirmed.”
    3. If the jury believe that at the time of the execution of the endorsement in suit Jacob O. Wirebach was a man of unsound mind, and by reason of mental unsoundness was unfit to transact business or make a contract, and such mental unsoundness was not only easily detected, but was plainly apparent from his appearance and conversation, and that the president of the bank saw the decedent at and immediately before the time of the execution of the endorsement, and could, by the exercise of due diligence, have ascertained his mental condition, the verdict must be for the defendant. Ans. “If the jury find, from all the evidence in the case, that the mental unsoundness of Wirebach, referred to in the point, was plainly apparent, from his appearance and conversation, to all persons with whom he came in contact, and by them easily detected, then, subject to this qualification, the point is affirmed. If, however, the jury find that Wirebach’s mental unsoundness was not plainly apparent, from his appearance and conversation, or was not apparent at all to every person with whom he came in contact, then the president of the bank was under no obligation at the time of the endorsement of the note by Wirebach to exercise any diligence for the purpose of ascertaining his mental condition at that time, unless the jury find that Wirebach’s mental unsoundness was in fact from his appearance and conversation plainly apparent to the president of the bank.”
    7. If at the time of the endorsement the officers of the bank knew that Jacob O. Wirebach was of weak or imbecile mind and easily influenced and imposed upon, and the bank,. through its president, procured the endorsement to be made by said Wirebach, and the said contract of endorsement was rash, improvident or unconscionable, there can be no recovery upon said endorsement, and the verdict must be for the defendant. Ans. “ Not affirmed.”
    The court charged the jury, inter alia, as follows:—

      “ The defendant has interposed a twofold defence to the payment of the note — 1st. That there was a fraudulent contrivance on the part of the bank and Charles Christman, by which Wirebach was induced to endorse the note; and, 2d. That Wirebach at the time he endorsed the note was of unsound mind and incapable of making a binding contract.
    “ On the question of fraud, we say to you that fraud must be proved; it cannot be presumed. [We have endeavored to ascertain -whether there is any evidence in the case on the question of fraud, misrepresentation or undue influence on the part of the bank that would authorize us to submit that question to you for your consideration. We fail to find any such evidence in the case.] * * *
    “ It is contended by the defendant that if, in point of fact, Wirebach was of unsound mind at that time there can be no recovery by the bank against the defendant, whether there is or is no evidence that the bank had notice or knowledge of such unsoundness. I recognize to some extent the peculiar language used by our Supreme Court in the several cases bearing on the proposition, and that possibly the doctrine may be deduced from those cases that there is a distinction between the case of an accommodation-endorser, who has received no money or value under and by virtue of his contract of endorsement, and a case where the maker or endorser receives value. A careful examination of the cases has led the court to this conclusion : that the principle underlying the decisions in these cases is not clearly inapplicable to the case now under consideration, and [we therefore charge you, as the law of this case, that it is not sufficient for the defendant to relieve himself from the responsibility of paying the note by merely proving that at the time when the note was endorsed by Wirebaeh he was of unsound mind, but he must further pro oe that the bank had notice or knowledge of such unsoundness.} The contract of endorsement by Wirebaeh, so far as the hank is concerned, is an executed contract. At the time the note in suit was given the bank held eleven notes of which W. U. Stocker & Co. were the makers. On some of the notes Richards & Christman were sole endorsers; on the rest, Richards, Christman and Wirebach were joint endorsers. One or two of the notes wore overdue,- and the rest had not yet matured. The note in suit was given in place of the eleven notes, at a longer period, with different makers and endorsers. When the new note was given and the old notes surrendered by the bank, that made the contract of endorsement by Wirebaeh on the new notes, so far as the hank was concerned, an executed contract.
    “ If the court is in error on the question of notice or knowledge, such error will be speedily corrected by the Supreme Court. [To entitle the defendant to a verdict in this case, he must establish by satisfactory evidence that Wirebaeh was of unsound mind on the 7th of December 187G, and that the bank had notice or knowledge of such unsoundness of mind.]
    “ If the defendant has satisfied you, by the weight of evidence, that Wirebaeh was on that day in fact insane and incapable of comprehending the nature, character and consequences of his contract of endorsement, then your next inquiry will be, had McEvers Forman or John F. Gwinner, the president and cashier of the bank, notice or knowledge of his unsoundnoss of mind. The only testimony of notice is that of Charles Christman. * * * The defendant claims that there was constructive notice — that is, there was enough in the appearance of Wirebaeh, considering the fact that he was a paralytic. If you should find that to be so ; that this condition manifested itself more or less all the time; that there is a reasonable presumption that it existed on that day; and, if it did, that then Forman, though he may not have been completely satisfied of Wirebach’s mental condition, yet it was his duty to make inquiry.”
    Verdict for the plaintiff of $11,972.73, and, a. rule for a new trial having been discharged, judgment thereon. The defendant took this writ of error, assigning for error, inter alia, the answers to points, the portions of the charge above quoted in brackets, and the ruling sustaining the challenge of nlaintiff to the juror, Daniel E. Richards.

      Edward J. Fox (W. S. Kirkpatrick with him), for the plaintiff in error.
    The court below, in deciding that a lunatic may make a valid accommodation endorsement, went a step beyond any prior decision. No case has ever gone further than to hold that when the estate of a lunatic has had the advantage of the contract, the contract shall be sustained. Where the contract is without consideration, we contend that it is only necessary to prove insanity or incompetency to contract: Lancaster Bank v. Moore, 28 P. F. Smith 407; Snyder v. Laubach, 7 W. N. C. 464; Moore v. Hershey, 9 Norris 196. The doctrine laid down in answer to our third point, and in the general charge, that in such case notice or knowledge of insanity must be proved, is erroneous: Allore v. Jewell, 4 Otto 500.

      W. W. Schuyler (William Muchler with him), for the defendant in error.
    To avoid a contract made by a lunatic, something more than the mere fact of lunacy must be established. In drawing the line between the valid and voidable contracts of a lunatic, two sets of interests must be kept in view. In the first place, the helpless condition of the lunatic commends him peculiarly to the protection of the court, and in the second place, the public has rights which even a lunatic is bound to respect. 'The courts have heretofore been not a little embarrassed in their efforts to formulate a general rule by which both of these sets of interests would receive their due share of protection, and more especially where it has been necessary to pass upon the liability of a lunatic as maker, or endorser of commercial paper in the hands of a bona fide holder for value and without notice of the lunacy. But this court has very recently announced a rule, at once clear, concise and comprehensive which affords protection both to the lunatic and the public ; not absolute protection, it is true, but the utmost protection of which the nature of the case is susceptible. In Moore v. Hershey, 9 Norris 196, Mr. Justice Paxson says: “ The true rule applicable to such cases is, that while the purchaser of a promissory note is not bound to inquire into its consideration, he is affected by the status of the maker — as in the case of, a married woman or a minor. In neither of these cases can he recover against the maker. In the case of a lunatic, however, he may recover, provided he had no knowledge of the lunacy, and the note was obtained without fraud, and upon a proper consideration.
      But the lunatic or his committee may defend upon either of these grounds.”
    The equitable principles upon which the rule as here laid down is based, have frequently been recognised: LaRue v. Gilkyson, 4 Barr 375; Beals v. See, 10 Id. 56: Lancaster Co. Bank v. Moore, 28 P. F. Smith 407; Snyder v. Laubach, 7 W. N. C. 464; Molton v. Camroux, 2 Exch. 487, and 4 Exch. 77; Elliot v. Ince, 7 DeG., M. & G. 487; Story’s Eq. Juris., sect. 228; Wilder v. Weakley, 34 Ind. 181; Benjamin on Sales, sect. 29 (Amer. ed.) The note in suit was obtained “ upon a proper consideration.” In exchange for the endorsement of Mr. Wirebach, the bank surrendered the Stocker notes, on which Wirebach was liable as endorser, and additional time was given. That the decision goes further than any reported case, is no argument against it, but is the more to the credit of the court who made it, if it accords with well established equitable principles. As between Mr. Wirebacli’s representatives and the bank — an innocent party, who discounted the note in the regular course of business — the equity is with the latter: Ex parte Hall, 7 Vesey 264.
    The challenge to the juror was properly sustained on the authority of Rank v. Shewey, 4 Watts 218, and Harrisburg Bank v. Forster, 8 Watts 304.
   Mr. Justice Trunkey

delivered the opinion of the court, May 2d 1881.

Where a person fairly a,nd in good faith, sells property or loans money to a lunatic who appears to be sane and is not known by the vendor or lender to be insane, and who has not been found to be a lunatic by judicial proceedings, and the lunatic receives and uses the same, whereby the contract becomes so far executed that the parties cannot be placed in statu quo, such a contract cannot afterwards be set aside, or payment refused by the lunatic or his representatives: La Rue v. Gilkyson, 4 Barr 375; Beals v. See, 10 Id. 56; Lancaster County Bank v. Moore, 28 P. F. Smith 407; Wilder v. Weakley, 34 Ind. 181; Elliot v. Ince, 7 DeG., M. & G. 475, 487. In Elliot v. Ince it is remarked that “the result of the authorities seems to bo that dealings of sale and purchase by a person apparently sane, though subsequently found to be insane, will not be set aside against those who have dealt with him on the faith of his being a person of competent understanding.” Chief Justice Gibson based the lunatic’s liability in such cases on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it; he is liable to bear the consequences of his infirmity, as he is liable to bear his misfortunes.

There can be no binding executory agreement where one of the Darties is bereft of reason: a capacity to contract is absolutely necessary. An insane person is incapable of committing a crime or making a contract, yet it is common to speak of his torts and his contracts, and on many of them he is liable in a civil action. One who knowingly sells goods to an insane person, necessary for his use, may recover their value, on the same principle that an infant is liable for necessaries he purchases. His liability for necessaries and suitable, articles, is deemed rather a benefit than a disadvantage to him.

It is noticeable that in this Commonwealth, where the lunatic has been held liable,'there was neither imposition nor want of full consideration for the amount of liability, and when not for necessaries, the opposite party had no knowledge of the lunacy. Thus, in Lancaster County Rank v. Moore, supra, stress was put on the fact that the bank had .no knowledge of Moore’s insanity, and in good faith, loaned 'th,e money which was placed to his credit and checked out by him. It was held to be within the doctrine of Beals v. See, that the contract was executed so far as the consideration was concerned, and that the rule which prevents insane persons obtaining the property of innocent parties and retaining both property and price, required payment of the note. Snyder v. Laubach, 7 W. N, C. 464, is where Yost’s endorsement of the note was merely a renewal of an endorsement made when he was unquestionably of sound, mind; and it was held that he was clearly liable on the note of which the note m suit was a renewal; there was full consideration, and the case was within the decision of Lancaster County Bank v. Moore. The consideration was a debt for the amount of the renewal note. So in Kneedler’s Appeal, 37 Leg. Int. 504, a judgment entered on a bond by virtue of a warrant of attorney was allowed to stand because the lunatic, acting by advice of counsel, received the full consideration which he prudently applied in payment of his undisputed debts, and the plaintiif had no knowledge of the insanity when the money was loaned. Of like purport are every one .of the cases decided elsewhere, which are cited and relied on by the defendant in error. In most if not all cases where an insane person has been held answerable, as if his contract were binding, he received and enjoyed an actual benefit from the contract.

The question now presented is: Will an action lie on the accommodation endorsement of a promissory note by a lunatic? If the determination of this was not made, it was very clearly indicated in Moore v. Hershey, 9 Norris 196. There the action was by an endorsee against the maker of a promissory note, and evidence was offered to prove that the maker had received no consideration for the note, which fact the plaintiif had admitted in conversation, proof having boen made that the maker was insane, but the offer was rejected, the court below ruling that as the note in suit was commercial paper and the plaintiff a holder for value, the consideration could not be inquired into. This was held to he error. Panson, J., said “ We place our ruling upon the broad ground that the principle of commercial law above referred to does not apply to commercial paper made by madmen. * * * The true rulo applicable to such cases is, that while the purchaser of a promissory note is not bound to inquire into its consideration, he is affected by the status of the maker, as in the case of a married woman or a minor. In neither of these cases can he recover against the maker. In the case of a lunatic, however, lie may recover, provided he had no knowledge of the lunacy, and the note was obtained without fraud, and upon a proper consideration.”

“ There must be a limit to the civil responsibility of persons of unsound mind, otherwise their property would be at the mercy of unscrupulous and designing men.”

If the holder could recover against one who was insane when he endorsed or made the note without consideration therefor, no wider door could be opened for the swindler to despoil such helpless persons of their estates. An infant who makes or endorses a note mav, by his representative, plead his infancy as a complete defence. In like manner a lunatic may plead insanity and want of consideration. The consideration respects himself, not the holder who may have given value to his endorser. If the fact that the holder had paid value were enough, the lunatic could not defend for fraud upon him or for want of consideration ; then an innocent holder could recover, though the judgment would sweep away the lunatic’s entire estate, and he had not been benefited a farthing. Nor would a nominal sum be sufficient. It is said that the law protects these who cannot protect themselves, but it would be sorry protection, if one holding a valid note against a helpless man for four thousand dollars, could get it renewed lor ten thousand dollars, and recover the full amount of the renewal note. The consideration must be fair and conscionable, and then it is proper. When it is a pre-existing debt, or money loaned, its measure is certain, and the insane man is liable for no more than the amount of such debt or loan. The holder of a madman’s note stands in no better position than the payee. An accommodation maker or endorser, in fact, is a surety for the principal debtor, and when he is an infant or an insane person, he or his representatives may defend as in other forms of contract. We are not persuaded that commercial or public interests require an adjudication that a lunatic who signs a contract as surety, or as accommodation maker or endorser, is liable for the debt of another man.

This action is upon a note for §10,075.92, which was given to the bank to take up notes of Stocker & Co., which were endorsed by Richards and Christman. J. C. Wirebaoh was accommodation endorser, and this was known to the bank. He was an endorser on one of the former notes for §4400. It is alleged by the defence that Wirebaeh was incapable of making a contract by reason of insanity, not only at the date of the note in suit, but also at the date of said former note. If this fact were established, the verdict should have been for defendant. And if he were sane when he endorsed the prior nóte, and insane at the time he endorsed the note in suit, he is not liable for the one in suit, as it is not a mere renewal note. / The learned judge of the common pleas instructed the jury that “ to etititle the defendant to a verdict in this case, he must establish by satisfactory evidence that Wirebaeh was of unsound mind on the 7th of December 1876, and that the bank had notice or knowledge of such unsoundness.” We are of opinion that it was error to rule that the defence failed unless the bank had such notice or knowledge. This ruling pervaded the charge and answers to points; corrected, there is no occasion for special remark on each of the first nine specifications of error. We are not satisfied that the court erred in charging that there was no evidence of fraud, misrepresentations or undue influence on the part of the bank, or of fraudulent practices by Christman on Wirebach to authorize submission of these questions. Eraud is not to be presumed -from the mere fact of endorsement, even by a man feeble in mind and body. It is common for one friend, though possessed of strong mind, to ruin himself financially by indorsing for another, and while it is ver}?- imprudent if not rash, it has never been considered unconscionable, except when procured by some artifice or fraud, of which there must be some evidence. Were the endorser weak-minded, less evidence would be required to establish the fraud.

Daniel E. Richards, one of the jurors, was challenged to the favor. It appeared that he was second cousin to the husband of a daughter and legatee of J. C. Wirebaeh, deceased. This was cause of principal challenge, which may be to' the blood or kindred of either party within the ninth degree (3 Black. Com. 363). “ And how far remote soever he is of kindred yet the challenge is good. * * * Affinity or alliance by marriage is a principal challenge, and equivalent to consanguinity where it is between either of the parties, as if the plaintiff or defendant marry the daughter or cousin of the juror, or the juror marry the daughter or cousin of the plaintiff or defendant, and the same continues or issue be had. But if the son of the juror hath married the daughter of the plaintiff, this is no principal challenge, hut to the favor; because it is not between the parties. * * * Challenge concluding to the favor is, when either party cannot take any principal challenge, but sheweth causes of favor, which must be left to the conscience and discretion of the triors upon hearing their evidence, to find him favorable or not favorable.” (Coke upon Litt. 157, b.) The challenge was expressly to the favor, .and the fact submitted to the court instead of triors. This- mode of determining the fa6t was assented to by both parties, neither objected. It was a question of fact to be decided on the conscience and discretion of the court, acting in place of triors, and the decision is not reviewable. Cummings v. Gann, 2 P. F. Smith 484, is not in point, for in that case the jurors were challenged proffer affectum.

None of the assignments relative to the offers of testimony by the defendant is sustained. One is to the effect that the defendant was prevented from proving by Mr. Scott that Wirebach was a shrewd, intelligent business man prior to 1875. Why the court overruled the direct question is not stated, but the witness was properly examined, and testified that Wirebach’s manner of conversation was good, that he was a fluent talker, intelligent, had a good memory, and. was an intelligent business man. All of the witnesses were allowed to testify, so far as they knew, as to his appearance, manner, conversation and acts, before and after the commencement of his alleged unsoundness of mind. Nor do we think that the insolvency of Richards and Christman, or the value of Wirebach’s property at the date of the endorsement, or that Wirebach once took an interest in, and was well informed on political matters, w'ere facts so strictly, pertinent that it was error to reject them. The admissibility of such facts depends much on other testimony in the cause, and most generally safely rests in the judgment of the court where the cause is tried.

The learned judge seems to have carefully considered his rulings, and to have fairly submitted to the-jury to determine as to the alleged insanity of Wirebach at the time of the endorsement. But for the single error relative to notice to, or knowledge by the bank of the insanity of Wirebach, the cause must go back for another trial.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    The Borough of Easton versus Lehigh Water Co. The Lehigh Water Co. versus Borough of Easton.
    1. By the Act of May 4th 1854 sect. 8, Pamph. L. 545, the West Ward Water Company was required to “ furnish water for the extinguishment of fires” in the town of Easton, “at points and places along improved properly supplied with water. * * * Provided, that the town council shall be at the expense of erecting * * * fire-plugs, etc.” By the Act of May 5th 1855, sect. 4, Pamph. L. 448, á supplement to the above-named act, said company was required to furnish “ a sufficient supply of water for the extinguishment of fires, as provided for in the eighth section of the act to which this is a supplement, to erect * * * at their own expense fire-plugs as designated in said section, etc.” Held, that the true intent and meaning of the section of the supplementary act above cited was to require the West Ward Water Company to provide a sufficient number of plugs and an adequate supply of water to extinguish fires.
    2. The same section of said supplementary act provided further that where the pipes of said West Ward Water Company should be laid in the same streets with those of the Easton Water Company, a corporation already in existence, the duty of erecting the plugs should be performed alternately by the two companies. This duty had previously been performed in said streets solely by the Easton Water Company, in accordance with its act of incorporation and the supplements thereto. By the second section of said supplementary act the West Ward Water Company was authorized “to purchase * * * all the property * * * of the Easton Water Company * * * and the same to hold, occupy and enjoy, * * * subject nevertheless to the liabilities * * * contained in the act incorporating said Easton Water Company.” Said supplementary act contained other sections providing for the charges for use of water and other matters entirely foreign to those above mentioned. These latter sections the Easton Water Company by a vote of its board of directors, refused to accept. Subsequently the West Ward Water Company bought a portion of the pipes and property of the Easton Water Company, on streets where their own pipes were already laid. Held, that the rejection by the Easton Water Company of the séctions of said supplementary act relating to charges for the use of water, etc., could not be deomed a rejection of the remainder of the act, but rather as an implied acceptance thereof, and that therefore said company had become liable to perform the duties imposed by the fourth section of said supplementary act in relation to the erection of plugs on streets whore the pipes of the West Ward Water Company were also laid. Held,, further, that the West Ward Water Company, although they had not purchased the whole property of the Easton Water Company, had succeeded to all its duties in the localities where they had purchased its property, and among others to the duties imposed by the fourth section of said supplementary act.
    3. A mandamus lies where there is a clear legal right in the relator, a corresponding duty in the defendant, and a want of any other adequate, appropriate and specific remedy.
    4. Where in a mandamus proceeding certain defences are not set up in the defendant’s return to the writ of alternative mandamus, or made in the court below, they will not be considered on error to the Supreme Court.
    April 1st 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.

      Error to the Court of Common Pleas of Northampton county: Of January Term 1881, Nos. 65, 287.
    Upon the petition of the corporation of the borough of Easton, and Joseph M. Hackett, president of town council, relator, plaintiff, against the Lehigh Water Company, the court awarded a writ of alternative mandamus, requiring the defendant company to erect a certain number of fire-plugs at specified places in said borough of Easton, for the purpose of furnishing a sufficient quantity of water for the extinguishment of fires at the points named. The respondents filed an answer, and, upon issue joined and application for a writ of peremptory mandamus, it was agreed by the parties that an auditor should be appointed to report the law and facts to the court. The auditor (Hon. William Mutcliler), made a report, finding certain facts, which are fully set forth in the opinion of this court, and recommended that the mandamus issue to compel the Lehigh Water Company to erect the additional fire-plugs at the said points and places in said borough west of Eighth street.
    Exceptions filed by both parties to the auditor’s report, were dismissed by the court, the report confirmed, and a decree entered that a writ of mandamus issue as recommended by the auditor. Both parties sued out writs of error, assigning for error respectively, the dismissal of their exceptions. The eighth assignment of the borough of Easton was as follows: “ The court erred in ordering and decreeing that a writ of mandamus issue to compel the Lehigh Water Company to erect the additional fire-plugs at points and places in that portion only of the borough of Easton lying west of Eighth street, designated in the relator’s petition. The order and the judgment of the court should have been that the mandamus issue to compel the Lehigh Water Company to erect the additional fire-plugs prayed for, not only at the said points and places in the said borough of Éaston. west of Eighth street, but also at the points and places designated in the said relator’s petition lying east of said Eighth street.”
    The second assignment of the Lehigh Water Company was as follows : “ The court erred in awarding a writ of peremptory mandamus to compel the Lehigh Water Company to erect the additional fire-plugs at points and places in that portion of the borough west of Eighth street, designated in the relator’s petition.”
    Both writs of error were argued together.

      W. S. Kirkpatrick, for the Borough of Easton.

      W. W. Schuyler, for the Lehigh Water Company.
   Mr. Justice Paxson

delivered the opinion of the court, May 2d 1881.

This was a mandamus to compel the Lehigh Water Company to erect .a certain number of fire-plugs in the borough of Easton, to supply said borough with water for the extinguishment of fires. Each party has taken a writ of error to the judgment of the court below; the water company because the mandamus was too broad; the borough because it was not broad enough.

Without going into unnecessary detail it is manifest the Lehigh Water Company, as the purchaser at a judicial sale of the property and franchises of the West Ward Water Company, became entitled to all the rights and privileges of the latter, and at the same time liable to the burdens and duties imposed by its charter. The eighth section of “an act to incorporate the West Ward Water Company,” passed 4th May 1854, Pamph. L. 545, provides “ That the said West Ward Water Company shall from time to time, and at all times, furnish water for the extinguishment of fires free of charge to the borough, att points and places along improved property supplied with water by said company: Provided, That the town council of the said borough shall be at the expense of erecting and keeping in repair fire-plugs, at the points and places above designated, and the said water company is also authorized to supply individuals and corporations with water for family and other purposes, for such compensation as may be agreed upion between the said company and individuals or corporations, or according to the rates adopted by said company.”

It will be noticed that this section does not designate the quantity of water that shall be furnished, nor the number of fire-plugs that shall be erected. Hence it was contended by the company that any quantity of water, however small, and two fire-plugs, complied with the letter of the statute, and the borough could not claim more because not expressly given.

On the 5th May 1855, the legislature passed a supplement to said act (Pamph. L. 448), by the 4th section of which it was provided : “ That it shall be the duty of the West Ward Water Company, in addition to furnishing a sufficient supply of water for the extinguishment of fires, as provided for in the eighth section of the act to which this is a supplement, to erect and keep in repair at their own expense fire-plugs, as designated in said section, and in the event of an ornamental fountain being erected by the borough or citizens thereof, to supply the same with a reasonable quantity of water free of charge: Provided, That in such parts of the said borough as the said company shall lay pipes and furnish water along the streets, in which the Easton Water Company have erected fire-plugs, the said West Ward Water Company shall alternate with the Easton Water Company,- in the erection and keeping in repair of a sufficient number of fire-plugs for the said borough.”

This section shifts the burden of erecting the fire-plugs and keeping them in repair, from the borough, upon which it was placed by the Act of 1854, to the company. So much is plain. It was contended, however, that it did no more; that it did not enlarge the Act of 1854 either as to the quantity of water or the number of plugs the company were to supply. A careful reading of the section shows that its object was fourfold: 1. To secure to the borough a sufficient supply of water for the extinguishment of fires. 2. To throw the burden of erecting the fire-plugs and keeping them in repair upon the company. 8. To provide a supply of water for an ornamental fountain at the expense of the company, and 4. To require the company to alternate with the Easton Water Company in erecting fire-plugs and keeping them in repair upon the streets jointly occupied by the two companies with their pipes. It was urged, however, that the first portion of the section which refers to a “ sufficient” supply of water was but a recital of the eighth section of the Act of 1854, and as the latter does not designate the quantity of water, nor even provide there shall be a “sufficient” supply, it was a misrecital; and that so far as the Act of 1855 was a construction of the Act of 1854, it was void, for the reason that the construction of Acts of Assembly belongs exclusively to the judicial department of the government.

We regard this as a narrow view. It is not denied that the legislature had the power to require the West Ward Water Company to furnish a sufficient supply of water, and that if the words “ as provided for in the eighth section of the act to which this is a supplement” had been omitted from the Act of 1855, it would have imposed such duty upon the company. It would not be difficult to punctuate the said section of the latter act so as to make the words above quoted apply to “ the extinguishment of fires” only, but such a rule of interpretation is not necessary for the purposes of this case. One of the manifest objects of the section was to provide a sufficient supply of water for the purposes referred to. Nor do we'agree to the restricted construction claimed by the company for the Act of 1854. While, as before observed, the latter does not designate the quantity of water, it does clearly specify the purpose to which it is to be applied, viz.: the extinguishment of fires. We must give the act a reasonable construction. When it provides that the company shall furnish water for the extinguishment of fires, the evident meaning is so much water as may be necessary for such purpose. It does not meet the case to say that furnishing some water, i. e., one gallon, fulfils the requirement of the act. Yet this is the reduotio ad absurdum to which the argument upon this point would lead us.

We are of opinion that the court below was right in ordering the mandamus to go out for the erection of the fire-plugs on the west side of Eighth street. It remains to consider its refusal to issue it for the fire-plugs on the east side of said street. This rests upon different principles.

The Easton Water Company was incorporated by an Act of Assembly approved March 24th 1817, Pamph. L. 231, for the purpose of introducing water into the said borough, and it was provided by its charter that the said company “shall, in such streets or parts of the said borough where pipes shall have been laid, erect hydrants to be used solely for extinguishing fires.”

The West Ward Water Company was subsequently incorporated as before stated, “ for the purpose of introducing into that part of the borough of Easton, lying west of a newly-laid out street called Sitgreaves street, and into such portions of Forks township as are adjacent, a supply of pure water for the use of the inhabitants of the same.” Sitgreaves street is now known as' Eighth street. Then came the supplement to the act incorporating the West Ward Water Company, which provides that said company shall alternate with the Easton Water Company in the erection of fire-plugs as before stated. It was urged that this was imposing am additional burden upon the Easton Water Company, and was beyond the power of the legislature; that the latter company by a resolution of its board of directors refused to accept the provisions of the said supplement of 1855. We are unable to see how the supplement increased the burdens of the Easton Company. On the contrary it operated in relief of that company by requiring the West Ward Company to alternate in what before was the sole duty of the former company. Further, the resolution of the board of directors referred only to the fifth and sixth sections of said supplement, which relate to the charges for the use of the waters and other matters entirely foreign to the fourth section.

By the second section of said supplement, the West Ward Water Company was authorized “ to purchase and consolidate all the property, real, personal or mixed, belonging and appertaining to the Easton Water Company, and the same to hold, occupy, use and enjoy, together with all the rights, privileges, powers and authority of said Easton Water Company, of whatsoever kind or nature, upon such terms and conditions as may be agreed upon by the said companies, subject, nevertheless, to the liabilities, restrictions, regulations and requirements contained in the act of incorporation of the said Easton Water Company, and the several supplements thereto, and the act of incorporation of the said West Ward Water Company, and this act.”

■ At the time of the passage of the said supplement, the Easton Water Company had in operation two sets of waterworks and pipes, by which it supplied water to the people of the said borough. The larger and more extensive works and system of pipes were used in supplying water from the river Delaware, and the other from a spring on the hill north of the borough. The former constituted the principal works of the Easton Water Company. The two systems of pipes were connected together at one point while owned by this company. In the year 1856, in pursuance of said supplement, the Easton Water Company sold to the West Ward Water Company the real estate, machinery, works, reservoir, pipes and plugs by means of which it supplied the borough with water from the river Delaware. It still retained, and has since continued to operate, its spring waterworks. These are of much smaller dimensions ; the springs are limited in capacity, supply but a small portion of the borough, and have never furnished sufficient water for extinguishing fires. No fire-plugs were ever erected in connection with said spring water pipes. There were, at the time of said sale, about twenty-two fire-plugs which had been erected by the Easton Water Company which passed in the sale to the West Ward Water Company.

We have already seen that, after the passage of the supplement to its charter in 1855, the West Ward Water Company was required to erect and keep in repair all the fire-plugs west of Eighth street, and to erect and keep in repair one-half of the plugs east of that street, where the Easton Water Company had already erected plugs. The contention is as to the other half of the plugs east of Eighth street. Did the burden of erecting and repairing them pass from the Easton Water Company to the West Ward Water Company with the sale of the Delaware works in 1856 ?

It may be conceded that if the Easton company had sold all its works to the West Ward company, as it was authorized to do by the second section of the Act of 1855, there would he no doubt as to the liability of the latter company to erect and keep in repair all the plugs throughout the borough, because the act provides that the purchase should he subject to the restrictions and requirements of the charter of the Easton Water Company. But it is contended that this burden did not pass to the West Ward company, because, 1. The Easton company rejected the Act of 1855; and, 2. The West Ward company merely purchased a portion of the property of the Easton company, but did not acquire its franchises, and is not therefore chargeable with its burdens. Neither of these positions is tenable. The alleged rejection of the Act of 1855, as before stated, was confined by the resolution of the board of directors to sections 5 and 6, which have nothing to do with this contention. The express rejection of-'two sections of the act must be regarded as an implied acceptance of the remainder, and the maxim expressio unius est exclusio altering applies. Beside, the sale of the Delaware works to the West Ward company was manifestly made under the second section of said act. Hence we see the reason why the board of directors of the Easton company were careful to point out the sections which they declined to accept. The proposition that, because the West Ward company did not acquire all the property and rights of the Easton company, it was not charged with any duties in regard to the erection of fire-plugs is equally unsound. The duty of erecting plugs was imposed upon the Easton company by reason of its occupancy of the streets with pipes. When it transferred the Delaware works, together with those pipes and the right to operate them, to the West Ward company, the burden imposed thereon passed with the grant. It is no answer to this to say that the West Ward company had already the power by its charter to lay pipes in the same streets, and even to buy the pipes and works of the Easton company, without the Act of 1855. Had it so laid its pipes, it would have been required to alternate with the Easton company in the erection of plugs. By the purchase of its works and pipes, and to this extent it acquired the rights, and subjected itself to the burdens, of that company.

It remains to notice a few minor matters. The objection to the form of the proceeding was not specifically assigned for error, and does not need elaboration. A mandamus lies where there is a clear legal right in the relator, a corresponding duty in the defendant, and a want of any other adequate, appropriate and specific remedy: Com. ex rel. Hamilton v. The City of Pittsburgh, 10 Casey 496. The same principle has been asserted in numerous subsequent cases. The practice of referring such cases to an auditor is novel, but as it was not objected to, we see no reason why the facts may not be ascértained in this way.

The objection that the burden imposed upon the water company was- oppressive and unusual is without force. The time to have considered that matter was when the company was proceeding to organize under its charter. If the charter contained oppressive conditions in favor of the borough, the company could then and there have rejected it. But having accepted the charter they must take it own onere.

"It was further contended that the mandamus should not issue, because, first, the question in controversy was res adjvdicata, and second, the company having accepted the provisions of the Act of 1874, and obtained a new charter thereunder, the burdens imposed by former acts no longer exist.

These questions cannot be considered here for the reason they were not made in the court below. They do not appear in the return by the defendant company to the writ of alternative mandamus. That was the time and place to set up any matter of defence. The record of the suit, No. 65, April Term 1874, appears to have been offered in evidence before the auditor. It was objected to, however, and there appears to have been no ruling upon the objection. We do not regard it as a part of the case.

The necessity for the additional fire-plugs was a question of fact which the auditor has found in favor of the borough, and we think upon sufficient evidence.

The judgment of the court below is affirmed upon the writ of error of the Lehigh Water Company, No. 257, January Term 1881; and the "said judgment is reversed upon the writ of error of the borough of Easton, No. 65, January Term 1881; and it is further ordered that a writ of peremptory mandamus issue as prayed for in the petition of the plaintiff below.


text:
    Kister versus Reeser.
    1. A clause in a deed conveying in fee a portion of a tract of land belonging to the grantor, to the effect that “the said A. B., grantor, doth reserve a .road ten feet wide along the line of O. Di, to be shut at each end by a bar or gate,” will be construed to constitute a reservation to the grantor of a right of way, and not an exception from the conveyance of a ten-foot-wide strip of land;
    2. A. B. having conveyed a portion of a tract of land belonging to him by a deed containing the above reservation, one E., by various mesne conveyances, became seised thereof. A. B. afterwards conveyed to his son P. another portion of said tract, by deed, which made no mention, however, of the reservation. Afterwards A. B. died. E. subsequently fenced in the land over which, the right of way had been reserved, butP., entering, broke down the fences and passed over the same. In an action of trespass brought by E. against P. .• Held, that the plaintiff was entitled to recover.'
    May 3d 1881. Before Shaeswood, C. J., Mercur, Gordon, Paxson, Trunkey, Steerett and Green, JJ.
    Error to the Court of Common Pleas of YorTc, county. Of May Term, 1881, No. 134.
    Trespass guare clausum fregit, by Isaac Kister against George Neeser et al. On the trial, before Fisdicr, P. J., the following facts appeared :
    By indenture dated September 30th 1865, William Neeser and wife granted and conveyed to Henry H. Drorbaugli ami his heirs a tract of land containing about nineteen acres, part of a larger tract of land owned by the said William Neeser in fee. This deed contained the following clause : “ The said William Neeser doth reserve a road ten feet wide along the line of Joseph Burger, to be shut at each end by a bar or gate.” Burger’s land formed one of the boundaries of the tract granted.
    By indenture dated November 13th 1867, Drorbaugli and wife granted and conveyed the said tract to Isaac Frazer and his heirs. This deed contained the following recital: “ This being the same tract of land, that William Neeser deeded to Henry H. Drorbaugli by deed dated the thirtieth day of September a. r>. one thousand eight hundred and sixty-live, wherein said William Neeser reserves a road ten feet in width along the line of Joseph Burger’s land, to be shut at each end with a bar or gate.”
    By indenture dated December 9th 1867, Frazer and wife granted and conveyed the same tract to Isaac Kister and his heirs. This deed also contained the last-mentioned recital.
    William Neeser died in March, 1872. Prior to his death the said William Neeser, by indenture dated March 3d. 1872, granted and conveyed to his son, George Neeser, Sr., one of the defendants, another portion of the said large tract of land. This deed contains no mention of the privilege of the said road reserved by the said William Neeser in his deed to Drorbaugli. George Neeser, Sr., however, claims under the said reservation the use of a ten-feet-wide way over the land of Isaac Kister along the line of Joseph Burger.
    In April 1880, Isaac Kister placed a permanent fence at each end of the line of reservation mentioned in the deed of William Neeser to Drorbaugli. A short time afterwards George Neeser, Sr., and the other defendants, broke down the said fences, entered upon Ester’s land, and drove a wagon across the same. For this alleged trespass Isaac Kister brought this suit.
    The plaintiff requested the Court to charge, substantially, that the right to a road reserved by William Neeser in his deed to Drorbaugli not having been reserved to the heirs and assigns of William Neeser, ceased and determined outlie death of William Neeser in March 1872, and that such reservation was no ■justification of the trespass committed by the defendant-. The Court declined so to charge.
    The defendants submitted, inter aUa, the following point:

      2. That under the legal effect of the reservation in said deed from William Reeser to Drorbaugh, the portion of land ten feet wide along the line of Joseph Burger, for the use of a road, is excepted- out of the grant, and remained as it was before for the purposes of a road; that the evident purpose of said reservation was to furnish egress and regress from.the other lands of the grantor to and from the public road leading to Goldsboro’, and the defendant, being the owner of those other lands, had a legal right to pass in and out to said public road, over the said land reserved in said deed, and committed no trespass in doing so.

      Answer. Under the reservation in the deed of William Reeser and wife to Henry H. Drorbaugh for nineteen acres and thirty-five perches, dated September 30th 1865, the defendant had a legal right to pass over the road reserved in said deed, and did not commit a trespass in by entering as he did the premises of the plaintiff.
    The Court further instructed the jury that the plaintiff was not entitled to recover, and directed them to find for the defendants.
    Verdict accordingly for the defendants, and judgment thereon. The plaintiff took this writ of error, assigning for error the answers to points as above, and the instruction to find for the defendants.

      V. K. Keesey (<J'. W. Bittinger with him), for the plaintiff in error.
    The sole question in this case is whether the clause in the deed from William Reeser to Drorbaugh created in law an exception or a reservation. An exception excepts out of the thing granted a part of it, and leaves the estate in such part in the grantor the same as he had it before the grant; and where such an exception is expressed in a deed, the words “ heirs and • assigns ” are not necessary. But where a new matter or right is stipulated for in & deed in favor of the grantor, it is a reservation, and to carry the right beyond the grantor’s life, the words “ heirs and assigns” are necessary: 2 Thomas’s Coke Lit. *412 ; Shepherd’s Touchstone 80 ; Whitaker v. Brown, 10 Wright 197. The evidence showed that prior to the deed from William Reeser to Drorbaugh no road existed, as such, over the. line of reservation. The legal effect of the words of the reservation, “ doth reserve a road ten feet wide along the line of Joseph Burger,” is that the grantor reserves a right of way along said line. This is a new thing. It is an incorporeal right, and hot an estate in the land itself. The Court was in error in construing the clause to operate by way of exception of a strip of land ten feet wide, to be used as a road by the grantor and his heirs and assigns, instead of a reservation by the grantor of a right of

      way during his life, or ownership over a strip of the grantee’s land ten feet wide.

      W. G. Ghcupma/n, for the defendant in error.
    Technical words of reservation may operate and be construed as creating an exception whore the context and the subject-matter indicate such to have been the intention of the parties: 2 Thomas’s Coke Lit. *412. The reservation here of a roa,d means land for a road. It was not a thing incorporeal, for it was to be “ ten feet wide,” and an incorporeal hereditament cannot have dimensions. The land is the subject of the reservation, the use for a road, and being a tiling in esse, it is a proper subject of an exception, and the reservation operates by way of exception out of the grant. Shoenberger v. Lyon, 7 W. & S. 184, 192.
    June 20th 1881.
   Mr. Justice Trunkey

delivered the opinion of the Court,

William Reeser, by deed dated September 30th 1865, conveyed to Drorbaugh part of a tract of land which he then owned, and Drorbaugh’s title has been vested in the plaintiff. The deed contains this clause: “ The said William Reeser doth reserve a road ten feet wide along the line of Joseph Burger, to be shut at each end with a bar or gate.” Prior to the conveyance there was neither a public nor private road over the land. The owner in fee of land may travel over it when and where he pleases, and it would be vain to speak of his right of way within his lines. William Reeser died in 1872. The court properly treated the question as one of law; for, aside from the conceded facts, there was no evidence to affect the construction of the deed or clause of reservation. If that clause is an exception of land ten feet wide, next to Burger’s line, the plaintiff was not entitled to recover. But if it is a reservation of a way over said land, the defendants were trespassers. The land was granted in fee and a road reserved next Burger’s line. This was to be shut at each end, and, subject to the grantor’s use for a road, the grantee could enjoy it for all purposes. The word road has never been defined to mean land ; it is difficult to find a definition which does not include the sense of way, though the latter word is more generic, referring to many things besides roads. Road is generally applied to highway, street, or lane, often to a pathway, or private way, yet strictly it means only one particular kind of way. Its sense in this deed is very clear. Taking the entire clause, with reference to the grant, it means the reservation of a way. This is as plain as if the word way were in place of road. Lawyer and layman alike would understand the word road in this clause in the- same sense as it is used in the statutes providing for grant of “ private roads.” A private road, obtained by proceedings under those statutes, is a mere way, the owner of the way having no interest in the land.

A private way is an incorporeal hereditament of a real nature, entirely different from a common highway; it is “ the right of going over another man’s ground.” Where land is granted and the right of way reserved, that right becomes anew thing, derived from the land; and although, before the deed, the grantor had the right of way over the land whenever he chose to exercise it, yet when he conveyed the land the reservation was a thing separated from the right of the grantee in the land : State v. Wilson, 46 Me. 9. A reservation is"the creation of a right or interest which had no prior existence as such in a thing or part of a thing granted. It is distinguished from an exception in that it is of a new right or interest. An exception is always of part of the thing granted, it is of the whole of the part excepted. A reservation may be of a right or interest in the particular part which it affects. These terms are often used in the same sense, the technical distinction being disregarded. Though apt words of reservation be used they will be construed as an exception, if such was the design of the parties. Thus, when a deed in fee of land was made, the grantor “ saving and reserving, nevertheless, for his own use the coal contained in the said piece or parcel of land, together with free ingress and egress by wagon-road to haul the coal therefrom as wanted,” it was held that the saving clause operated as an exception of the coal. The coal was land and the reservation of that part of the laud excepted it from the grant. It was a thing corporate, existed when the grant was made, and differed from something newly created, as a rent or other interest strictly incorporeal: Whitaker v. Brown, 10 Wright 197. Here, the saving clause created the way over part of the laud granted, a right strictly incorporeal, and is not an exception of part of the land contained in the grant.

Judgment reversed, and venwefacias de novo awarded.


text:
    Harnish, Administrator, &c., and Keemer versus Herr.
    1. The plaintiff cannot testify in a suit against an administrator as to facts which occurred during the life-time of defendant’s decedent.
    2. A mechanic’s lien was filed against two persons as owners. Subsequently one of them died and his administrator was substituted. On the triiil the jury was sworn as to both defendants. The plaintiff ottered himself as a witness with reference to the terms of the original contract, contending that lie was not disabled from testifying by reason of the fact that the action was against an administrator, because said administrator was not a necessary party to the suit, his decedent having been merely the agent of the co-defendants in contracting for the building. This fact he also proposed to testify to. Held, that tbe name of the administrator not having been stricken off tbe record, and the jury having been sworn to try the case as against him, the plaintiff was incompetent to testify as to either of the points above stated. '
    3. Where a contract to erect a building has been entered into with the owner through an agent, it is not necessary upon subsequently filing a mechanic’s lien against said building, to specify tbe kind of work done or materials furnished, as in the case of a contract entered into with a contractor.
    May 3d 1881. Before Sharswood, C. J., Merour, Gor don, Paxson, Tbunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Lancaster county. Of May Term 1881, No. 101.
    Scire facias sur mechanic’s lien by Henry S. Herr against Henry II. Ilarnisli, administrator of Michael S. Harnish, deceased, and James Keemer.
    The lien was originally filed against Michael S. Harnish and James Keemer, owners, or reputed owners, and contractors. Michael S. Ilarnish having died, his administrator, Henry H. Ilarnish, was substituted. To the sei. fa. the defendants pleaded nunqua/m, mdebitatus, payment, payment with leave, &c,
    When the case was called for trial, before Livingston, P. J., the plaintiff ashed to have tbe jury sworn as to the defendant, James Keemer, as owner and contractor alone. The defendant objected on the ground that, although this is a'proceeding in rem, it may affect the interests of all the parties. Objection sustained.
    The following facts appeared: the property against which the lien was filed originally belonged to A. W. Ilarnisli, who, by articles of agreement dated in March 1876, contracted to sell tbe same to Michael S. Harnish for $5,000. No deed was ever made to Michael S. Harnisb, but A. W. Harnish, by indenture dated April 3d 1876, recorded July 6tli 1876; granted and conveyed the premises to John S. Harnish and James Keemer, as tenants in common. John S. Harnish was a son of Michael S. Harnish, who was insolvent. On November 8th 1876, Michael S. Harnish entered into a contract, in writing, with the plaintiff, Herr, to erect a tobacco warehouse on the premises for $2,400 — $1,200 payable when the building should be under roof, and $1,200 payable on its completion. On December 20th 1877, John S. Harnish conveyed his interest in the premises to James Keemer. Michael S. Harnish paid $1,000 on account of said contract, and the lien was filed for $1,500, the balance claimed to be'due. The bill of particulars filed was as follows:
    West Willow, Pa., 17th Sept. 1878.
    Michael S. Harnish to Henry Herr, Dr., to building brick tobacco warehouse in West Willow, Lancaster county, per contract and for extra materials and labor, . $2,500 00
    Or. by easb received to date,..... 1,000 00
    Balance due, .... $1,500 00
    The plaintiff claimed that Michael S. Harnish, in making the contract for the erection of the building, was acting as agent for James Keemer, the owner. The testimony in relation to such agency was contradictory.
    The plaintiff’s counsel called Henry S. Herr, the plaintiff, to testify in his own behalf. Objected to, this being an action against the administrator of Michael S. Harnish and James Keemer. Plaintiff’s counsel replied that the title to the land never having been in Michael S. Harnish, this proceeding, being in rem, cannot affect his estate, he having been only an agent or superintendent for Keemer. Objection overruled, and witness admitted to testify. Exception.
    The defendant presented, inter alia, the following point:
    2. The lien filed in this case is not binding upon the defendant’s real estate, because it does not set forth sufficient particulars to bind an owner when the contract was not made with him. Answer. If the jury find from all the evidence that Michael S. Harnish, in making this contract for this building, acted as the agent of Keemer in putting up the building, the lien is sufficient. If the jury found Harnish was not the agent of Keemer, was acting on his own responsibility and without authority from Keemer, then the law as stated in this point is correct.
    The court in the general charge submitted the question of agency to the jury, and instructed them that if they found that Michael S. Harnish acted as agent for Keemer in making the contract for the erection of the building, their verdict should be for the plaintiff. ■ \
    Yerdict and judgment for the plaintiff for $1,724.52. The defendants took this writ of error, assigning for error, inter alia, the admission of the plaintiff as a witness, the answer to their second point, and the submission of the question of agency to the jury.

      A. O. Ncwffher and D. G. Eshleman, for the plaintiffs in error.

      H. M. North, (B. E. Graff with him), for the defendant in error.
    October 3d 1881.
   Mr. Justice Paxson

delivered the opinion of the Court,

But for a single error this judgment might have been affirmed. The court below permitted the plaintiff to testify, notwithstanding tlie fact that the action was against an administrator. It is settled by several authorities that the Act of 1869 does not apply in such cases: Taylor v. Kelly, 30 P. F. S. 95; Hoopes v. Beale, 9 Norris 82; Gamble v. Hepburn, Ibid. 439. It was said, however, that the administrator of Michael S. Harnish was not a necessary party; that Harnish was the mere agent of Keemer, the owner of the property against which the claim was filed. Yet the record shows no motion on the part of the plaintiff to amend by striking out the name of the administrator as a party defendant. He did ask to have the jury sworn only as to Keemer, which was objected to by defendants, and the objection sustained by the court. It was the right of the defendants to have the jury sworn as to the administrator so long as he was suffered to remain a party to the record. It will not be pretended that if Harnish had been the contractor for the erection of the building, had been included in the claim and sued as such, the plaintiff wonld have been competent to testify in a suit against his administrator. Harnish and Keemer were sued as owners or reputed owners. Whether Harnish was such owner, or merely the agent of Keemer, was one of the questions involved in the trial. The plaintiff was not a competent witness upon this point, nor as to any other matter which had occurred prior to the death of Michael S. Harnish.

The claim would not have been sufficient had the contract been with a contractor, for the reason that it does not set out the particulars thereof. Lee v. Burke, 16 P. F. S. 336, decided that when the mechanic contracts, not with the owner, but with the contractor, the kind of work and material must be set out. Lee v. Burke has been followed in several later cases, one of which, Gray v. Dick, 1 Out. 142, was decided in the Eastern District in February. The claim as filed, however, sets out a contract with the owners. The bill of particulars is against Michael S. Harnish, who is charged in the claim as one of the owners. The contract offered in evidence is .between the plaintiff and Harnish only. The case was tried below upon the theory that llarnish was Keemer’s agent, and executed the agreement as such. If this position is sustained by due proof, then the agreement is that of Keemer, the admitted owner. Qui faoit per dlitim facit per se. I have been unable to find any evidence of authority for Harnish to bind Keemer by an agreement under seal. Yet if, with full knowledge, Keemer subsequently ratified it, he would be bound thereby and so would his building. There was no error in the answer of the court to the defendant’s second point. None of the remaining assignments requires discussion.

The judgment is reversed and a venire facias de novo awarded.


author: Mr. Justice Green

text:
    McGettrick’s Appeal.
    An auditor appointed by tbe Orphans’ Court to distribute tbe proceeds of a sale of realty belonging to an intestate, among his heirs, has power to inquire into and to pass upon the validity of a deed whereby the share of one of said heirs in said realty is assigned to a stranger.
    May 3d 1881. Before Sharswood, O. J., Merour, Gordon, Paxson, Teunkey, Sterrett and Green, JJ. • .
    Appeal from a decree of the Orphans’ Court of Lancaster county, distributing the proceeds of the real estate of John McGrann, deceased. Of May Term 1881, No. 14.
    The material facts were as follows : — John McGrann died intestate, unmarried and without issue, leaving as one of his heirs-at-law a niece, Eleanor J. McGettrick. The real estate of the intestate was sold under an order of the Orphans’ Court of Lancaster county, by a trustee appointed for that purpose to distribute the proceeds. Before the auditor, the share of said Eleanor J. McGettrick was claimed by one Robert Taylor, under a deed executed by her to him for her interest in the decedent’s real estate, duly recorded in Lancaster county. Eleanor J. McGettrick claimed the same share, and alleged that the said deed to Taylor had been procured by him from her by fraud at a time when she was incapable of executing a deed by reason of intoxication, and that it was without consideration. The auditor reported, as a fact, “ that the grantor was intoxicated when sho signed the deed, and for several months before.” Taylor objected to the jurisdiction of the auditor to inquire into the validity of the recorded deed, and contended that if the grantor desired to attack it, she must do so by proper proceeding in another Court. The auditor reported on this point as follows: “ The auditor has been unable to find a single case where this point arose. All the cases say that the validity of a judgment cannot be attacked before an auditor for the purposes of distribution, unless, perhaps, when collusion is alleged between the debtor and the creditor, and subsequent creditors will be defrauded, ... In the appeal of the Second National Bank of Titusville, i Norris 531. the Supreme Court say: ‘ All the cases say that the mere fact that the debtor has been overreached, and a fraud perpetrated upon him by the creditor, gives no right to the other creditors to attack him collaterally'. . . . . In such cases the only person who can impeach the judgment is the defendant himself, and this must be done by a motion in the proper Gourt to open it.’’

    “ In the case before us, the only persons who can be affected by this deed are the grantor and grantee, and if any fraud has been practiced upon the grantor, or if the deed is voidable on account of the want of capacity to contract on the part of the grantor, or want of consideration, they must go into the proper Court to have it set aside.
    “The auditor is therefore of opinion that he has no jurisdiction in the matter, and awards this share to Robert Taylor.”
    Eleanor J. McGettrick filed exceptions to the report of the auditor, and subsequently presented to the Court a petition for an issue, and a trial by jury to determine the question of the validity of the said deed.
    The Court, in an opinion by Patterson, J., dismissed the exceptions, confirmed the report, and refused the issue prayed for on the ground that the exceptant not having asked at the audit for an issue, and having taken her chance before the auditor, was too late to demand an issue. The exceptant thereupon took this appeal, assigning for error the refusal to grant an issue, and the decree dismissing the exceptions and confirming the auditor’s report. '

      D. J. EsKleman (with him B. F. EsKleman), for the appellant.
    The auditor found as a fact that the deed had been executed under circumstances which would render it voidable ; but both he and the Court were of the opinion that, like a judgment, the deed could not be attacked collaterally before the auditor in a proceeding for distribution. But there is no analogy between a deed and a judgment. The fact that the deed was recorded in the recorder’s office does not make it a record in the sense that a judgment is a record. The Orphans’ Court has jurisdiction in the distribution of a decedent’s estate to ascertain the parties who are entitled to share therein. The power to decide all questions essential to distribution is incident to the power to distribute, and the validity of this deed was such a question. A deed inter gya/rtes has no more sanctity than any other contract under seal, 'and it may be impeached in any Court in which it is set up as evidence of a claim : Whiteside v. Whiteside, 8 Harris 474 ; Rice’s Appeal, 29 P. F. Smith 182; Campbell’s Appeal, 30 Id. 315; Hammett’s Appeal, 2 Nor. 394; Otterson v. Gallagher, 7 Id. 355; Jackson v. Summerville, 1 Ilar. 359 ; Mitchell v. Kintzer, 5 Barr 216 ; Rankin v. Porter, 7 Watts 387; Bixler v. Kunkel, 17 S. & R. 298; Mechling’s Appeal, 2 Grant 157; 1 Story’s Eq. Jur. § 238.
    This case is expressly ruled by Dundas’s Appeal, 23 P. F. Smith 474, where the facts were substantially identical.
    But if the auditor had no jurisdiction to inquire into the validity of the deed, the Court should have granted our application for an issue.

      Wm. Aug. Atlee, for the appellee.
    Dundas’s Appeal decides only that the Orphans’ Court has power on petition for payment of a legacy to examino into the validity of an alleged transfer ; it does not decide that an auditor to distribute a fund has such power. The proceeding was in the nature of a bill in equity, not an audit for distribution. In McMurray and wife v. Davis, o W. N. C. 305, Dundas’s Appeal is commented upon, and it is there held that a bill in equity is the most appropriate remedy, if not the only one, in such a case as this. The contest here is not between an executor or administrator and a distributee; it is as to who owned an interest in certain land, and was entitled to the proceeds of the sale of it. The jurisdiction of the Orphans’ Court by Act of June 16,1836, § 19, Purd. Dig. 1104, pi. 8, is extended to the partition of the real estate of intestates among the heirs; it is nowhere extended to the investigation into the validity of a deed executed by an heir to an outside party. None of the cases cited by the appellant decide that it is so extended. Rice’s Appeal, 29 P. F. Smith 182, and Campbell’s Appeal, 30 Id. 315, are both cases in equity. It is settled that an auditor cannot inquire into the validity of a judgment, and we contend that, by analogy, he cannot set aside a deed. Such a result can only be obtained by a bill in equity in the Common Pleas, or if the Orphans’ Court has concurrent jurisdiction, by a formal proceeding by petition, answer, and proofs.
    May 23d 1881.
   Mr. Justice Green

delivered the opinion of the Court,

In this case the proceeds of the sale, under an order of the Orphans’ Court, of the real estate of an intestate, were in the hands of the trustee for distribution. One of the claimants to the fund was a niece of the intestate. Her share of the proceeds was claimed by the appellee, Robert Taylor, by virtue of a deed to him from the appellant for her interest in the lands sold. This deed was attacked as having been obtained fraudulently from the appellant and as being consequently void. The auditor held that he had no jurisdiction to inquire into the validity of the deed, and for that reason declined to consider the merits of the controversy, and awarded the share of the appellant to her grantee. On exceptions taken to this action of the auditor, an application was made to the Orphans’ Court for an issue to try the validity of the deed to Taylor, but the Court refused the issue, holding that the appellant was bound by the action-of the auditor, and that the latter had decided adversely to her claim.

We are of opinion that the auditor was mistaken in supposing he had no jurisdiction to inquire into the validity of the deed, and that the learned judge of the Orphans’ Court was in error in dismissing the appellant’s exceptions to the report of the auditor. It is, of course, undisputed that the Orphans’ Court has exclusive jurisdiction to distribute the estates of decedents among those entitled to them. Such distribution necessarily includes the power and the duty to ascertain the persons to whom distribution must be made. When the share of one who is apparently entitled is claimed by another, such claim must be established in the proceeding for distribution, and as it must be there established, so it may be there impugned. There is no occasion to resort to any other court, or to any other proceeding, to determine the validity of the claim, as the Orphans’ Court has full power and adequate procedure to dispose of the controversy. If a deed or other instrument is set up as a muniment of title for the interest of a distributee, an attack upon its validity is in no respect an impeachment of it in a collateral proceeding. A deed is not a proceeding nor the result of one. It is not a judgment of a court, nor a decree of any species of tribunal. It is but an instrument vni&r partes, and has no higher sanction than can be given to it by the act of the parties. As such it must abide the tests of all voluntary contracts. It is therefore as liable to impeachment as any other form of contractual relation, and is necessarily subject to be invalidated whenever it is proffered to a tribunal as a basis of a right. These considerations are fundamental, and the authorities which prove that the judgment of a Court cannot be impeached collaterally, and is therefore obligatory upon an auditor, have no application.

Decree reversed ■ and record remitted, with directions to the Court below to re-commit the case to the auditor for further proceeding before him, the costs of this appeal to be paid by the appellee. ■


author: Mr. Justice Mercur

text:
    Hunter versus Moul.
    1. The mere acceptance by a creditor from bis debtor of the note of a third person, drawn to the creditor’s order, in case of an antecedent indebtedness, must, in the absence of any special agreement, be deemed not as absolute payment but as conditional payment or the receipt of collateral security. The debtor remains liable for his own debt in the event of nonpayment of the note.
    3. Where a debtor thus transfers a note drawn to the creditor’s order, but does not indorse it, he is not entitled to strict notice of dishonor, according to the custom of merchants, butcau only escape liability by showing that the neglect of the holders to give him such notice has actually occasioned him loss or damage. If he can prove that he has sustained, loss, he is then exempt from liability ouly to the extent of such loss.
    3. The fact that the creditor, under the dishonor of the note, has exchanged it for other securities which also ultimately have turned out to be worthless, will not exempt the debtor from liability except to the extent that he can prove ho has suffered damage by such exchange.
    4. A., being a creditor of B., accepted from B. O.’s note drawn to A.’s order, not as absolute but as conditional payment of the debt, B. undertaking to stand for the note and see that it was paid, but not indorsing it. A. had the note discounted, but on maturity it was protested, and taken up by A. A few days after A. took from O. two drafts for the amount of the dishonored note, of which fact he notified R. On maturity, one of the drafts was paid and the other dishonored. In an action by A. against B., to recover that portion of the original indebtedness between them represented by the dishonored draft: Held, that the plaintiff, having been guilty Of no negligence in failing to collect the note, and not having been shown to have occasioned loss or damage to the defendant by accepting the drafts in lieu thereof, was entitled to recover.

      May 4th, 1881. Before Siiarswood, C. X, Mercur, Gordon, Paxson, Trunkey, Stebrett and Green, JJ.
    Error to the Court of Common Pleas of York county. Of May Term 1881, No. 122.
    Assumpsit, by Conrad Moul against Andrew Hunter, to recover a balance due on a book account for goods sold. The action was commenced by foreign attachment, and service having been made on the garnishees, the defendant appeared and pleaded non-assumpsit, payment, and payment with leave, &.e. The cause was referred to a referee under the provisions of the Act of April 9th 1868, Pamph. L. 7.S0, who found in favor of the plaintiff. His findings of fact and conclusions of law are fulty set forth in the opinion of this Coui't.
    Exceptions filed by defendant to the referee’s report were overruled by the Court, and the report confirmed, whereupon the defendant took this writ, assigning for error this action of the Court.

      Hay (Cochran with him), for the plaintiff in error.—
    Moul’s position was that of surety, by parol, for the payment of the Camp & Randall note for $900, held by Hunter as collateral security. Moul, as surety, was entitled to immediate notice of the non-payment of the note, in order that he might have the opportunity of paying the debt and claiming a return of the security in the same state in which it was at the time of the transfer. The failure by Hunter to give him such notice, and the conduct of Hunter, in giving time to Camp & Randall, and in taking from them other obligations for the note, discharged the surety. It is immaterial whether the proof shows that the surety sustained actual loss or not. It was sufficient that his rights and remedies were changed without his consent, and he himself placed in a different position from that which he occupied when he transferred the note as collateral security: Southwick v. Sax, 9 Wend. 122 ; Nexsen v. Lyell, 5 Hill, 466. Moreover, Hunter’s conduct amounted to an absolute conversion and appropriation of the $900 note to his own use, and thereby extinguished his claim upon the defendant for its amount: Muirhead v. Kirkpatrick, 9 Harris 241; M‘Lughn v. Bovard, 4 Watts 314; 2 American Leading Cases (4 ed.) 113, 114, 256 ; Lawrence v. M‘Calmont, 2 Howard 426 ; Dayton v. Trull, 23 Wendell 345.

      John M. Young, for the defendant in error.
    October 3d 1881.
   Mr. Justice Mercur

delivered the opinion of the Court,

Tliis judgment was entered on tlie report of a referee. The important facts found by him are substantially these: Hunter was indebted, on book account, to Moul, in the sum of some $1,100 or $1,200. On being asked for payment he replied he had no money, but had the promise of a note of $900 from Camp & Randall, payable in four months, and that he would give that to Moul to get discounted and use the money. The latter answered that he did not want the note, but that Hunter should get it discounted and give hi in the money. To this Hunter replied he was a stranger and could not get it discounted; but that Moul should take the note and get it discounted, and he (Hunter) would stand for it and see it was paid. Moul assented to this. The note was made payable to him and sent to him. It was not indorsed by Hunter. Moul had it discounted at bank and received the proceeds. When it matured it was protested for non-payment and taken up by the defendant in error. In lieu thereof and soon thereafter, he took from Camp & Randall their two drafts of $150 each, payable at twenty and thirty days respectively, and wrote Hunter informing him of the fact, but received no answer. The draft first falling due was paid at maturity; the other was protested for non-payment, and Moul wrote Hunter informing him thereof. This draft remained in the hands of the defendant in error. Treating it as no payment he seeks to recover of the plaintiff in error, on the original account, a sum equal to the amount of the draft.

The contention is whether the circumstances under which the defendant in error took the note, or his subsequent action in relation thereto, compelled him to apply it as a payment on the account against the plaintiff in error. T here was no express agreement to accept the note as payment,.nor to give time for the payment of the account.

The referee found the note was not taken by the defendant in error as absolute payment of so much of the indebtedness of the plaintiff in error, and technically not as collateral security therefor; but inasmuch as paper so held has-been called collateral by the courts, he treats it as such. He further found the defendant was guilty of no negligence in failing to collect the note, and that he did not so convert it to his own use as to bar his right to recover of the plaintiff in error.

■ The mere acceptance, from a debtor, of his own note or the note of a third person, in case of an antecedent indebtedness, is not a payment of the indebtedness. In the absence of a special agreement it must be considered as a conditional payment or as collateral security. The debtor continues liable for his own debt in the event of a failure of payment of the note thus given or transferred: Leas v. James, 10 S. & R. 307; McGinn v. Holmes, 2 Watts 121; Weakly v. Bell, 9 Id. 273; McIntyre v. Kennedy, 5 Casey 448; Brown v. Scott, 1 P. F. Smith 357; League v. Waring & Co., 4 Norris 244.

When the transfer of a note is a conditional payment, it is necessary to inquire what the true condition was, and if not fulfilled by the person accepting it, what injury, if any, has resulted from the breach.

The cases are not in harmony as to the effect of a failure to present the note of the third person and give notice of its dishonor, when no injury therefrom has resulted to the debtor. We shall not attempt to review them, but refer to some which we think correctly rule this case. Great regard must be had to the character of the transaction. If the debtor indorse the note a more stringent rule prevails as to notice than if he transfer it by delivery only. When the guaranty is absolute that a specific act shall be done by another, it was said, in Vinal v. Richardson, 13 Allen 521, demand and notice need not be averred, although the want of them may be a defense on the ground of negligence to the extent of the resulting injury. One who has merely guaranteed it, but whose name is not on the bill or note, is not in general entitled to notice of non-payment: Chitty on Bills 498. So, on page 441, it is further said, “In general, if the bill or note be given as collateral security, and the party delivering it were no party to it, either by indorsing or transferring it by delivery when payable to bearer, but merely caused it to be drawn or indorsed or delivered over by a third person as a security, or has merely guaranteed the payment, it has been considered that he is not, within the custom of merchants, an indorser or party to it, so as to be absolutely entitled to strict regular notice, nor discharged from his liability by the neglect of the holder to give him such notice, 'unless he can show by express evidence, or by inference, that he has actually sustained loss or damage by the omission.” The reason is, when a person delivers over a bill to another without indorsing it, he does not subject himself to the obligation of the law merchant, and cannot be sued on the bill; as he does not subject himself to the obligation he is not entitled to the advantages. If he can prove he has sustained damages, then lie is discharged only to the extent of 'such actual damages: Id. The guarantor of a note does not stand in the same situation as parties to it; his obligation ’s in the nature of an insurance of the debt, and there is no need of the same proof to charge him as if he were an indorser. The necessity of demand in order to charge the indorser of a bill is solely founded on the custom of merchants, and applies only to actions against the indorser on the bill itself; it does not apply when the guarantor is not an indorser: Gibbs v. Gannon, 9 S. & R. 201; Overton v. Tracey, 14 Id. 311; McLughn v. Bovard, 4 Watts 308. The law is clearly stated in 2 Parsons on Bills 184, wliere it said if paper be transferred by delivery only as security for a pre-existing debt, and it is dishonored while in the hands of the transferee, it affects in no way the debt it was intended to secure. The original liability remains what it was, and upon dishonor of the paper it is not even necessary to give him notice thereof as an indorser; but the debtor may show in defense any injury he has sustained by the actual laches of the creditor. Nor docs the fact that the collaterals were exchanged for other securities which were ultimately found worthless, change the liability, unless it is further shown that a loss resulted to the owner of the collaterals by reason of such exchange: Girard Fire and Marine Ins. Co. v. Marr, 10 Weight 504.

The name of the plaintiff in error was neither in nor on the note; it was not payable to bearer; he was in no sense a party to it. With a view that the proceeds, when paid, should dis charge an amount of his indebtedness equal thereto, lie caused it to be made payable to his creditor and put it into his hands, through no fault of that creditor it was not paid. It is not shown that it could at any time have been collected of the makers. The acceptance from the makers of their two drafts was no payment, but did result in the payment of one-half the amount. Having sustained no loss or damage by any act of his creditor, the plaintiff in error has no just cause of complaint at being still held liable for his indebtedness. The creditor was not obliged to give up the unpaid draft beforfe bringing this suit. It is not shown to be of any value; but if valuable, he has a right to retain all the securities in his hands until he obtains satisfaction of the debt due him.

Judgment affirmed.