#### Donehoo’s Appeal.

On an application to open a judgment entered against an habitual drunkard within the period covered by the inquisition, the evidence as to the defendant’s condition, when he gave the note on which judgment was entered, was conflicting. The court found that the preponderance of evidence showed that the defendant fully comprehended what he was doing when he gave the note ; that he was sober ; and that no fraud or deception was committed upon him ; and refused to open the judgment. Held, not to be error.

Oct. 17, 1888.

Appeal, No. 126, Oct. T., 1888, from a decree of C. P. Washington Co., dismissing rules, by D. M. Donehoo, committee, to show cause why certain judgments against Wm. Wylie Stephenson, an habitual drunkard, should not be opened, at Jan. T., 1883, Nos. 265 and 266, and March T., 1883, No. 150.

The pleadings were petition and answer.

The facts appear from the opinion of the court, as follows, by McIlvaine, P. J.:

“On June 15, 1883, the above-named defendant, Wm. Wylie Stephenson, was adjudged to be an habitual drunkard, and by reason thereof incapable of transacting business. The inquest, on whose finding this adjudication was based, also found that he had been in *214this condition for the period of one year prior to the date of their finding, or from the 15th day of June, 1882. On July 3, 1883, D. M. Donehoo was appointed the committee of said Stephenson, and, on his application, this rule was granted. ■

“Two questions are involved in the issue joined upon this rule:

“ 1. Are the notes and warrants of attorney, upon which the judgments to the above number's and terms were entered, void and of no effect by reason of the incapacity of the defendant, Wm. Wylie Stephenson, to make a contract at the dates on which said notes were respectively signed ?

“ 2. If he was capable of making a contract at these, dates, then is there any usurious interest included in the face of either of the notes, and, if so, should the court open the judgments, or either of them, in order to allow the defendant a credit on the principal debt for the amount of this usurious interest?

“ The judgments entered to No. 265, Jan. T., 1883, and to No. 266, Jan. T., 1883, were entered on notes dated and executed on Dec. 29, 1882, and the one entered to No. 150, March T., 1883, was entered on a note executed on Feb. 21, 1883. Thus it appears that all three of the notes were given *within*one year of the finding of the inquest and of the day and year when the said defendant was, by a decree of this court, adjudged an habitual drunkard.

“ In the determination, then, of this first question raised by the pleadings, the burden of proof is on the respondent. Or, in other words, the finding of the inquest makes a prima facie case in favor of the petitioner. Noel *v.*Karper, 53 Pa. 97; Klohs *v.*Klohs, 61 Pa. 245.

“ But three witnesses were called as to Stephenson’s condition when these notes were executed: Stephenson himself, L. S. Cotton and the respondent himself. The respondent says that when Stephenson executed these notes he was perfectly sober and knew what he was doing. On the other hand, Stephenson himself and Cotton say he was drunk; Stephenson says he was so drunk that he could hardly write his name (although an examination of the signature to the notes would not suggest such an idea). After giving the defendant the benefit of his prima facie case and carefully weighing the testimony of these witnesses, all of whom are known to us, we are not satisfied that Wm. Wylie Stephenson, on the day he executed' these three notes in question, was incapable of making a binding contract, or that James Kuntz, Jr., the respondent, knew that he was then under the influence of liquor (if he was), or that he was in any way incapacitated to do business. The testimony of both Cotton and Stephenson is unsatisfactory. A distinct recollection of the transaction has evidently passed from their minds, and they were unable to give any definite information on the subject when they were examined as witnesses.

“ And that is one of the difficulties encountered where parties delay bringing a matter of this kind before the court for a longpe*215riod of time, as in this case. If this proceeding had been instituted at the earliest possible moment — which would have been as far back as July, 1883 — then the witnesses on both sides might have been able to speak with more accuracy and with more definiteness as to what transpired when these notes in controversy were executed.

“ Believing, as we do, that the preponderance of the evidence shows that young Stephenson fully comprehended what he was doing when he signed these notes; that he was sober, and that the respondent dealt with him fairly, believing that he was capable of doing business, we find that the petitioner has failed to establish his allegation that these notes are invalid by reason of the incapacity of Wm. Wylie Stephenson to make a contract at the time when said notes where signed and delivered. Wernet’s Appeal, 91 Pa. 320; Lancaster Co. Nat. Bank *v.*Moore, 78 Pa. 407.

[“ Considerable testimony was taken and read at the argument in regard to the defendant borrowing money from other parties, and from the respondent at other times, none of which, in our opinion, is either relevant or competent under the pleadings in this case.] [1]

“ Now, as to the second question: Was there usurious interest included in the face of these notes ?

“ 1. As to the $125.00 note entered to No. 150, March T., 1883: This note was given in place of the defendant’s promissory note, for the same amount, which the respondent had bought from Dr. Creigh, who had taken it from the defendant in payment of, or as security for, the price of a library, which the Doctor had sold him. The respondent gave $100 for this note, but it does not appear when it was made or when he bought it. When the judgment note in question was given, the promissory note was surrendered to Stephenson, who burned it!

“ The fact that Kuntz bought this note at a discount and included the whole amount thereof in the judgment note would not give Stephenson the right to claim a credit of $25 on the last note for usurious interest, for the relation of lender and borrower did not exist between him and Kuntz.

“ 2. As to the $400 given to Kuntz and entered to No. 265 Jan. T., 1883: Kuntz testifies that he had bought from different parties four or five small notes against Stephenson, on some of which L. C. Cotton was surety; that he desired these notes all put in one judgment note so he could enter it; that he made a statement showing the amount of these small notes and showed it and explained it to Stephenson and told him what he wanted; that the amount of the small notes was $400, the same as the amount for which this judgment note was drawn. He states further that Stephenson signed the judgment note, and then took the small notes and threw them in the fire. It does not appear in the evidence when these small notes were given by Stephenson, or when they were *216purchased by Kuntz. The relation of lender and borrower not existing between the parties, there can be no usury in this note.

“ 3. As to the $400 note given to J. F. Shrontz and entered to 266, Jan. T., 1883. This note was given for borrowed money, and it is admitted that Stephenson only received $350 when the note was executed. As the note had only three months to run, more than the legal rate of interest was retained, and the judgment which was entered should be opened in order that the amount justly due upon this note may be ascertained.

“ In conclusion, we ought to add that, in cases of lunacy, the rule is that where one takes the note of a person who is afterwards found to be a lunatic and the finding of the inquest overlaps the date when the note was given, neither the lunatic nor his committee can avoid the payment of the note if the other party had no knowledge of the lunacy and the note was obtained without fraud and upon a proper consideration. As between an innocent party and a lunatic, the lunatic must suffer the consequences of his own infirmities. Where one, without knowledge of the lunacy, deals fairly with a lunatic, it would be unjust to allow the lunatic to reap the benefit of the deal and repudiate his own obligations in connection therewith. Beals *v.*See, 10 Pa. 56; Moore *v.*Plershey, 90 Pa. 200.

“Young Stephenson may have squandered the money that these notes represent in riotous living, but that is no reason why an innocent party should lose the money and relieve Stephenson, or his estate, from the consequences of his own folly.

[“And now, April 9, 1888, the rule herein granted, so far as it relates to the judgments entered to No. 265, Jan. T., 1883, and to No. 150, March T., 1883, is discharged, and so far as it relates to the judgment entered to No. 266, Jan. T., 1883, it is made absolute, and said last styled judgment is opened for the sole purpose of submitting to a jury the question as to how much is due and payable upon the note upon which said judgment was entered; James Kuntz, Jr., to pay the costs incurred on this rule.”] [2]

*The assignments of error*specified, 1, the portion of the opinion included within brackets, quoting it; and, 2, in refusing to open the judgments, and to enjoin the collection of the same, and in entering the decree of the court, quoting it.

*John D.*Braden, for appellant.

The contracts of lunatics are void in law and equity. The Acts of 1819 and 1834, have put lunatics and habitual drunkards upon a level, so far as their estates are concerned. Sill *v.*McKnight, 7 W. & S. 244.

The promissory note of a lunatic, given upon a valid consideration, to one who has no knowledge of the condition of the maker, may be valid; but the want of a good consideration can be set up as a defence, even as against a bona fide holder for value. Moore *v.*Hershey, 90 Pa. 196; Wirebach *v.*Bank, 97 Pa. 543.

*217The finding of the jury makes out a prima facie case for the lunatic, and places the burden on one who would collect the judgments. Noel *v.*Karper, 53 Pa. 97; Klohs *v.*Klohs, 61 Pa. 245. He must prove that the contract on his part was fair and just, and with no taint of fraud; that it was either for necessaries for the lunatic, or was at least for his advantage, or one which was profitable to him. He must prove that he had no notice of the condition of mind of the lunatic. And, in the present case, he must give satisfactory proof that the lunatic was sober, at the date of the contract. Wright’s Ap., 8 Pa. 57; Hehn *v.*Hehn, 23 Pa. 416; Noel *v.*Karper, 53 Pa. 97; Klohs *v.*Klohs, 61 Pa. 245 ; Lancaster Co. Bank *v.*Moore, 78 Pa. 407.

The testimony of the appellee is unsatisfactory, and that appellant’s evidence was not as clear as might be, will not help his case. The burden of proof is still upon the appellee.

The testimony which the court held irrelevant proved that Stephenson was insane on the value of his property, and the giving of notes. In Jones’s Ap., 11 W. N. C. 258, the court set aside a deed, although the proof was that the grantor, at the time of its execution, was sane on every subject except one infatuation in regard to the grantee.

*A. M. Todd,*not heard, for appellee.

The court found, from sufficient evidence, that defendant was capable of doing business and making a binding contract, when the judgment notes were given. This is sufficient. Noel *v.*Karper, 53 Pa. 97; Gore *v.*Gibson, 13 M. & W. 623.

The consideration paid by Kuntz for one judgment was the surrender to Stephenson of a number of smaller promissory notes which had been purchased by Kuntz. There is no attempt to attack these notes on the ground that they were given when Stephenson was drunk, and if such testimony had been offered, it would have been wholly irrelevant unless knowledge of the circumstances surrounding their making had been brought home to Kuntz. State Bank *v.*McCoy, 69 Pa. 204; McSparran *v.*Neeley, 91 Pa. 17; Crawford *v.*Scovell, 94 Pa. 48; Bank *v.*Moore, 78 Pa. 407 ; Beals *v.*See, 10 Pa. 56.

The consideration, therefore, was fair and conscionable. It was a pre-existing debt, its measure was certain, and Stephenson was liable therefor. Wirebach *v.*Bank, 97 Pa. 543 ;' Moore *v.*Hershey, 90 Pa. 196; Snyder *v.*Laubach, 7 W. N. C. 464.

As none of the witnesses, whose testimony was held irrelevant, knew anything about Stephenson’s condition at the time the note was given, and as the only issue was that raised by the petition that “ at the time said note was signed ” there was incapacity on the part of Stephenson, we think the court properly held the testimony to be irrelevant. Noel *v.*Karper, 53 Pa. 97; Bank *v.*Moore, 78 Pa. 407.

This court will not reverse for the exercise of a sound discre*218tion by the court below. Wernet’s Ap., 91 Pa. 319 ; Kneedler’s Ap., 92 Pa. 428.

Oct. 29, 1888.

Per Curiam,

The conclusion adopted by the court below in the case in hand seems to us to have been justified by the evidence. The facts, as found by the learned judge, make the result arrived at by him necessary to an equitable disposition of the controversy. ,

The decree is affirmed, at costs of appellant.