for plaintiff in error. M. F. Elliott and J. Trial to the court, who filed the following W. Bouton, for defendant in error. findings: PER CURIAM. If Pardon Wright, whose death gave rise to the present controversy, was a man of known intemperate habits, and the defendant below, with others, furnished him liquor while intoxicated, and with knowledge of his habits, I do not see why they are not all responsible for the accident which resulted therefrom. In such case it would be impossible for the jury to say which particular glass of liquor was the proximate cause of his death. Each glass did its share of the work. We do not see, therefore, any error in the answer of the court to the defendant's third point. As was well said by the learned judge: "To affirm it | just as it stands would be, as we understand it, in effect, to make the whole legislation upon this question nugatory, and of no account whatever, because we cannot shut our eyes to the fact that in nine cases out of ten of this character the person who purchases the liquor purchases it in more than one place." Nor do we think it was error in the court below to repeat to the jury the language of Justice WOODWARD in Fink v. Garman, 40 Pa. St. 95. It was good law as well as good morals, and its application to this case could have done the defendant no legal injury. The last assignment is without merit. Judgment affirmed. (127 Pa. St. 74) "From the evidence heard, and admissions in argument made, I find the following facts: (1) The municipality, by its officers in special meeting assembled, where all but one member of the council were present, recognized the costs and fees in certain suits as a legal debt against the borough, and appointed, by resolution appearing on the minutes, a committee of two of their number to ascertain the amount thereof, and borrow money to pay the same, which proceedings, at the next regular meeting, having been read, the minutes were approved. It does not appear that the borough was otherwise indebted at that time, viz., December 12, 1885, nor does the precise amount of the indebtedness appear, though on argument both plaintiff and defendant assumed, and so argued, that the sum borrowed, viz., $500, was less than two per centum upon the assessed valuation next preceding the making of the loan, and that the sum borrowed was not all required to pay off the debt, but that $150, or about that sum, does now remain in the treasury of the municipality; the remainder having been applied to existing debts. (2) In borrowing the $500 from the plaintiff, for which the said bonds in suit were given, the debt of the borough was increased as much as about $150; but this sum in excess of any then existing debt remains in the treasury unused, ready to be repaid to the plaintiff. (3) The debt so incurred was not a debt incurred for making of future improvements, or to pay for improvements made, but to pay an existing debt which accrued after the date 1. Const. Pa. art. 9, § 8, provides that the debt of the constitution and act of 1874. (4) The of a borough shall never exceed 7 per cent. of bonds are both under the corporate seal of the assessed value of its taxable property, nor shall it incur a new debt, or increase its indebt the borough, and each calls for $250, with edness to an amount exceeding 2 per cent. of the interest from their dates, February 27, 1886, assessed value without the assent of the elect- one payable in three, the other in five, years; ors. Section 10 provides that any municipality incurring any indebtedness shall at or before the and each called for payment of the state tax. time provide for the collection of an annual tax (5) The form of the bond is the same in both, sufficient to pay the interest, and also the prin except as to number and time. No. 1 is as cipal, within 30 years. Act of April 20, 1874, § 1; follows: No. 1. $250. The borough of makes void the increase above 7 per cent., and makes void any obligation issued therefor. Sec- Rainsburgh acknowledges to owe and stand tion 2 provides that a debt may be incurred not indebted to Albert E. Fyan, his heirs and exceeding 2 per cent. of the assessed value, but assigns, in the sum of two hundred and fifty before issuing an obligation or security for such debt the principal officer shall file a statement show-dollars, payable three years after date, with ing, among other things, the assessed valuation of interest from date, payable annnally, and the property, and the amount of the annual tax taxes on this loan. Given under my hand levied to pay the same; and, for failure so to do, the and seal this 27 Feb., 1886. J. W. Lee, officers shall be guilty of a misdemeanor. A borough incurred a lawful debt, not in excess of Chief Burgess. B. F. GUMP, Secretary. the 2 per cent., and issued bonds to discharge it, [Seal.]' (6) The statement required by the without levying the annual tax, and without filing act of April 20, 1874, was not made nor the required statement. Held, that though the bonds were invalid for failure to file the state filed in the office of the clerk of the quarter ment, the holders could recover their amount on sessions. (7) The municipality did not at or contract. before issuing the said bonds in suit provide for the collection of an annual tax sufficient to pay the interest, and also the principal thereof, within thirty years, as required by article 9, § 10 of the constitution of the commonwealth, and by section 2 of the act of April 20, 1874. (8) The plaintiff claims to recover $31.50, the annual interest due on February 27, 1887, and the state tax on the loan, and by his statement filed claims BOROUGH OF RAINSBURGH v. Í YAN. (Supreme Court of Pennsylvania. May 27, 1889.) MUNICIPAL BONDS-BOROUGHS. 2. In an action by the holders of the bonds against the borough, evidence that the borough councilmen had incurred the debt which the money was borrowed to discharge, individually, and had as officers recognized it as a debt of the city, is irrelevant. Error to court of common pleas, Bedford county; W. J. BAER, Judge. Action by Albert E. Fyan against the borough of Rainsburgh on certain bonds. First, on a count drawn on the bonds; | ceeding two per centum upon such assessed second, on a common count alleging a loan valuation of property, without the assent of $500 for a term of years, the interest of of the electors.' * * • Sec. 10. Any which and state tax defendant promised to county * * * or other municipality inpay annually. curring any indebtedness shall at or before the time of so doing provide for the collection of an annual tax sufficient to pay the interest, and also the principal thereof, within thirty years.' That these constitutional provisions are mandatory, and not merely directory, and are to be viewed in the light of "On the trial the defendant objected to the admission of the bonds in evidence (1) because money was borrowed for an illegal purpose, for a purpose for which they could not bind the borough,-and that they are personally and individually liable; (2) because there are two conditions precedent pre-limitations upon the powers to be exercised scribed by act of April 20, 1874, which must be performed before the bonds can issue, one, that they shall prepare a statement showing the indebtedness of the district at last preceding valuation, and the amount of debt to be incurred, to be verified by oath, and filed with the clerk of the court of quarter sessions before any bond shall be delivered; the other, that they shall proceed and levy an annual tax to pay such indebtedness before they shall make any loan or issue any bonds; and neither were performed in the attempt to make the loan. The objection was overruled, and evidence admitted, and bill sealed to the defendant. "The plaintiff objected to the admission of defendant's offer, which was as follows: Offer to prove in what suit the costs were to be paid in; that burgess and three councilmen commenced a prosecution as individuals and incurred a large amount of costs, without any authority from the borough, and in order to shield themselves from payment of the costs they undertook to borrow this money and saddle the debt on the borough. It was objected to by plaintiff (1) as ir relevant; (2) no evidence that plaintiff had any knowledge of what use was to be made of the money; (3) and, if used for an illegal purpose, plaintiff is not connected with it. Objection sustained on ground of irrelevancy, and bill sealed to defendant. The plaintiff offered auditor's settlement for previous year, made in the spring of 1886, to show that neither this loan nor costs paid in same were included in that settlement. Objected to as immaterial and irrelevant, and that it has been appealed from. Objection sustained, and bill sealed to the plaintiff. by municipalities, seems to us clear. They are safeguards in the interest of the tax-payer that must be observed. (4) Section 1 of the act of April 20, 1874, makes void the increase of indebtedness above seven per centum, except as provided by law, and also makes void any obligation issued therefor. Section 2 provides that a debt may be incurred, or existing debt may be increased, to an amount not exceeding two per cent. upon the assessed valuation of the taxable property. The second clause of section 2 provides that before issuing any obligation or security for such debt the principal officers of the municipality shall prepare a stateinent showing the actual indebtedness of the district, the amount of last preceding valuation, the amount of debt to be incurred, the form and date of maturity of the obligations to be issued therefor, the amount of annual tax levied and assessed to pay the indebtedness, under oath, and file it in the office of the clerk of the court of quarter sessions, and upon failure to do so he shall be guilty of a misdemeanor. (5) The statement required by section 2 of the act of April 20, 1874, was not filed. If it had been, the holder of these bonds would be held to have knowledge of all that was contained in the statement, and if by it it had appeared that the borough had no authority to issue the bonds, or that the bonds were given for a debt incurred in excess of two per cent. on the last preceding valuation, and no tax had been levied to provide for its payment within thirty years, he could not recover on the bonds. As the statement was not filed, how is the holder of the bonds affected? Manifestly he will be deemed to have full knowledge of all that should have appeared "From the facts found on the evidence, in a statement that ought to have been filed. and from admissions made, I make the fol- In this case what must such a statement lowing conclusions of law: (1) The debt of have been? This must be ascertained from the municipality, which was intended to be the facts found. On all the facts appearing, and was paid by the money borrowed from the statement, had it been made and filed, the plaintiff, was a lawfully contracted debt. must and would have shown: (1) That the (2) The municipality could issue bonds as existing indebtedness of the borough precedevidences of indebtedness for such a debt, un- ing the issuing of the bonds did not exceed less it falls within the constitutional prohi- $500; (2) that it was an indebtedness recogbition and the act of April 20, 1874. (3) nized by the municipality on its minutes as Section 8, art. 9 of the constitution pro- a legal indebtedness; (3) that the debt invides that the debt of any county, city, │curred or to be incurred by the two bonds of borough, * except as herein pro- $250 each did not exceed two per centum of vided, shall never exceed seven per centum the assessed value of the property of the borupon the assessed value of the taxable prop-ough, including any previous indebtedness, erty therein, nor shall any such municipal- and that the purpose of the loan was to disity or district incur any new debt, or in- charge and pay off existing liabilities of the crease its indebtedness to an amount ex-borough incurred since the dates of the con * * PER CURIAM. This judgment is affirmed upon the opinion of the learned judge of the court below. (127 Pa. St. 15) BERKSTRESSER et al. v. COMMONWEALTH, to Use of BERKSTRESSER. (Supreme Court of Pennsylvania. May 27, 1889.) BONDS PRINCIPAL AND SURETY-AFFIDAVIT OF DEFENSE. the principal defendant had been charged with 1. In an action on a bond, plaintiff alleged that wife desertion, and ordered to pay to his wife a certain sum as alimony every three months, and give security to the commonwealth in the sum of ordered committed until he complied with the first $500 for compliance with the order, and had been with the order, and as a temporary security, to executed by all the defendants, conditioned that avoid immediate commitment to jail, a bond was the principal should appear at the next term of court, and give the sureties ordered by the court, or that these sureties should be held as the suregive the sureties, nor did he pay the alimony deties ordered; that the principal did not appear and creed. The affidavit of defense alleged that the principal defendant had paid the amount of alimony decreed by the court to and including the date of the decree, and set up an alleged surrender of the principal by the sureties. Held, that the bond, being the voluntary obligation of defendants, was valid, and the affidavit was insufficient, in that it failed to allege that the security ordered to be given by the court had ever been given. stitution and act of 1874; (4) that the form, date of maturity, and number of the obligations to be issued was that disclosed by the two bonds, amounting together to $500. If these facts, that could be ascertained on inquiry, are all that was required to appear in the statement, then the facts that would give validity to the bonds existed, whether they were put on record in the statement required or not; and the plaintiff should recover. But one requisite is lacking. The act of 1874, § 3. inter alia, provides that the statement to be filed shall show the amount of the annual tax levied and assessed to pay the said indebtedness.' As no annual tax was levied before or at the time of incurring the indebt-order; that, not being then prepared to comply edness, and no provision was made for the collection of an annual tax sufficient to pay the interest, and also the principal thereof, within thirty years, the plaintiff, on inquiry made, (and he was thrown upon inquiry,) would necessarily learn that this was not done. The constitution, art. 9, § 10, provides that any municipality incurring any indebtedness shall at or before the time of so doing provide for the collection of an annual tax sufficient to pay the interest, and also the principal thereof, within thirty years.' The plaintiff, in the absence of a statement on file alleging a different state of facts, must be taken to have known that the tenth section of article 9 of the constitution, and the second section of the act of April 20, 1874, were not complied with in this regard. It follows, therefore, that the bonds were issued without authority, in contravention of the constitution and the law, and hence there can be no recovery on the bonds. It is, however, not required that the statement, etc., be filed before incurring a lawful debt, but that it be filed before issuing bond as security therefor. In this case the debt was a lawful debt, and less than two per cent. At least $350 of the amount borrowed was applied in the mere exchange of one creditor for another by payment of demand the plaintiff alleges that on ing an existing lawful debt, without thereby June 11, 1887, J. E. Berkstresser, one of increasing the debt, and the other portion of these defendants, had a hearing before the the loan, to-wit, $150 of the identical money court of quarter sessions of Warren county borrowed from the plaintiff, remaining in on a charge of wife desertion, and was orthe treasury of the borough for the use of dered by the court to pay to his wife or her the plaintiff. It should not, in this case, be attorney, every three months, four dollars held to have been such an increase of indebt- per week alimony, and "give security to the edness as becomes unlawful, for, taking into commonwealth, by one or more sureties, in consideration this unexpended fund lying in the sum of five hundred dollars, for complithe treasury, and held there for the purpose, ance with this order, and it is further ordered as seems conceded, to pay back to plaintiff, that J. E. Berkstresser pay the costs of suit, the indebtedness of the borough was not in- and is committed to the county jail till this creased thereby. We are clearly of opinion, order is complied with." The plaintiff furtherefore, that, though the bonds are void, ther alleges that the said J. E. Berkstresser, yet the debt which they were intended to se- not being then prepared to comply with the cure was and is a lawful debt, recoverable by said order of court, procured and delivered to suit on the contract, and that therefore un- the clerk of the said court, as a temporary der all the evidence the plaintiff is entitled security, to avoid immediate commitment to to recover, on the second count in his narr. jail, a bond or writing obligatory, duly exeor statement, $31.50, with interest from Feb-cuted by all these defendants, and, by filing ruary 27, 1887, and one year's state tax." Defendant brings error. 2. The affidavit alleged that defendants, the sureties on said bond, gave notice to the sheriff, bond was given, of their intention to apply for who had had the principal in custody when the leave to surrender the principal, and be discharged; that, upon hearing the application, the court or dered that it be denied, on the ground that the court; and that the defendants have been and are principal never gave the security ordered by the now willing to surrender the principal. Held, that no facts equivalent to a surrender were shown. Error to court of common pleas, Warren county The plaintiff in this case is the commonwealth of Pennsylvania, for use of L. Amelia Berkstresser, and in the declaration or state the same, procured his discharge from prison and the custody of the sheriff; and recites John Cessna, for plaintiff in error. Alex- the said obligation, the conditions of which ander King, for defendant in error. require the said Berkstresser to appear at the next court of quarter sessions, be of good be- | lieve, to deliver up the said J. E. Berkstreshavior to all citizens of the commonwealth, ser in open court, or to the sheriff, or at any and especially his wife, and give sureties as other lawful place, or in any lawful manner, ordered in this case, or these sureties are to be when they can be permitted so to do. held sureties for him, as ordered by the court The plaintiff's attorneys then moved for in this case. This recognizance was given to judgment for want of a sufficient affidavit of the commonwealth. The declaration then defense. On the hearing of the motion the alleges that said Berkstresser did not appear court delivered the following opinion: "On" at the next court of quarter sessions and give the 11th June, 1887, J. E. Berkstresser had sureties, and has not paid the plaintiff in in- a hearing before the court of quarter sessions terest, the wife of said Berkstresser, the sum upon a charge of wife desertion, and was orof four dollars per week, as required by the dered to give security to the commonwealth order of court, and therefore the said writing for the payment to his wife, L. Amelia Berkobligatory has become forfeited, and these stresser, the sum of four dollars per week, defendants become liable to pay the whole and to pay the costs of the proceeding, and amount therein named, to-wit, $500. The his commitment to the county jail was didefendants filed an affidavit of defense, al- rected until the order should be complied leging that the matters contained in the with. He never complied with the order. plaintiff's statement of claim, in the manner Although constructively in the custody of the and form as stated, are not sufficient for the sheriff, it does not appear by any direct or plaintiff to maintain her action. That the positive averment that the sheriff had taken said J. E. Berkstresser did appear at the next said Berkstresser into actual custody. On court of quarter sessions held after the the same day of the order, Berkstresser and signing of said recognizance, and did com- the other defendants in this suit, under their ply with the order of court referred to in hands and seals, respectively, executed the plaintiff's statement of demand, by paying obligation in suit, conditioned that said all costs ordered, the amount of alimony de- Berkstresser should appear at the next court creed by the court to and including Decem- of quarter sessions, and give the security orber 10, 1887. That on March 8, 1888, when dered by the court in the proceedings for denothing was due or unpaid under said de- sertion. This obligation was taken and accree of court, W. F Rice, Perry D. Clark, knowledged before the clerk of the court. and F. A. Cogswell, three of these defend- The affidavit of defense does not state that ants, and the sureties on said recognizance, the sheriff had any knowledge of the terms having given notice to the sheriff of Warren of the obligation executed by the defendants, county (the said sheriff being the same per- or that he consented that Berkstresser might son having had Berkstresser in custody at be discharged from imprisonment. From the time of the giving of the recognizance the fact that he did not put the defendant upon which this suit was brought) of their (Berkstresser) in jail, it is not unreasonable intention so to do, produced the said J. E. to surmise that he was informed that secuBerkstresser in open court of quarter ses-rity had been given, and that he supposed sions of Warren county, and petitioned said that it was the security ordered by the court, court to be allowed to surrender up said and that hence his duty had ended. But, Berkstresser to the court, and to discharge whether this is so or not, we are of opinion these defendants from the said bond or re- that the obligation in suit was the voluntary cognizance on the payment of the alimony obligation of the defendants. The terms decreed by court up to that date. That the are, in substance, that defendants shall be court granted a rule to show cause thereon, liable, if Berkstresser shall fail to appear at returnable the next day. That defendants the next court of quarter sessions, and give then notified the said sheriff of the action of the security ordered by the court. There is the court, that Berkstresser would be again no averment that the defendant did appear brought into court on the following day for and give the security ordered. We see noththe purpose of surrendering him up, and that ing illegal in the terms of the obligation, and the court considered Berkstresser was not the affidavit of defense states no fact showlegally discharged from his custody. That ing illegality in the consideration, or any on the following day Berkstresser was again policy of law forbidding the enforcement of brought into open court, and the rule to show defendants' contract in accordance with its cause upon the petition argued, when the terms. We do not deem it necessary to decourt ordered: "It appearing that Berkstres- cide whether the sureties might surrender ser never gave the security directed by the the body of the principal to the sheriff in discourt, the court declines to act on the peti- charge of their liability, because a careful tion." That on the same day, and after the reading of the affidavit does not, in our opinsaid order of court was made, these defend- ion, show any facts that in law are the equivants notified the said sheriff of the purportalent of such surrender. The rule for judgthereof, and thereafter, on the same day, the said Berkstresser was in the company of the said sheriff, when he could have been taken into custody, had the sheriff desired so to do. That defendants are now, and always have been, ready and willing and able, as they be ment for want of a sufficient affidavit of defense is made absolute." From the order making the rule absolute defendants bring error. Charles H. Noyes and Watson D. Hinckley, for plaintiffs in error. S. P. Johnson, W. M. Lindsey, and J. O. Parmlee, for de- |ing of the day the marriage was celebrated, fendant in error. and before the marriage ceremony, Sobieski (Supreme Court of Pennsylvania. May 27, 1889.) Ross) five thousand dollars, without defalcaGIFT-NOTE IN FRAUD of Wife. 1. Where one, on the day of his second mar-annually. Witness my hand and seal. Soriage, being then worth over $100,000, executes a BIESKI ROSS. [L. s.]' ($2.50 In. Rev. stamp note for $5,000, payable to his mother in trust for his three minor children by his first wife, and duly canceled.) This note is in the handthere is no evidence of any fraudulent intent, writing of Sobieski Ross. It is the note upthe arrangement is a reasonable and natural pro- on which the payment of $6,000 was made vision for the children, of which the second wife June 30, 1864, for which credit is claimed has no ground to complain. by the executor in his account, and to which the exception is filed. The payment was in fact made to the said Mary A. Ross, trustee, to apply on the note. 2. The note being supported by a good consideration of love and affection, and having been unconditionally delivered to the payee, it cannot be held an unexecuted gift. Appeal from orphans' court, Potter county; H. W. WILLIAMS, Judge. The facts of this case fully appear from the following report of the auditor, David Sterrett: "At the time the note was given the said Mary A. Ross was residing in the decedent's family. There is no evidence aliunde of consideration for the note, except as contained in the deposition of Mary A. Ross. "The auditor appointed to restate and ad- This deposition was admitted in evidence to just the partial account of W. K. Ross, sur- be considered in the deposition as to the tesviving executor of Sobieski Ross, late of the timony in reference to the consideration. borough of Coudersport, county of Potter, Subject to such objection, the auditor finds aforesaid, on exceptions filed thereto on be- that there was no money or property considhalf of Isabella Ross as guardian of Thomas eration to the maker of the note moving him Ross, and in her own right, respectfully rep- to its execution and delivery, and, without resents: That, having been duly qualified, he regard to such testimony, the auditor finds met the parties in interest pursuant to their that the real consideration moving him to agreement, in the borough of Coudersport such execution and delivery was his nat in said county, on the 5th day of November, ural love and affection for his children named 1885, and sat for the purpose of his appoint- therein, as beneficiaries, and his desire to ment, at which time and place he was at- set aside the sum named in the note for their tended by Messrs. Larabee & Lewis, Benson use and benefit. No payments were made & Dornan, and R. Brown, counsel for execu- on the note during the life-time of Sobieski tor, and M. F. Elliott and Peck & Scoville, Ross. After the note matured according counsel for exceptant. The evidence ad- to its terms, he repeatedly expressed the deduced was mostly documentary, but several sire that the fund should be kept entire unwitnesses were sworn, and the deposition of til George, the youngest child named thereMary A. Ross taken in the case of Isabella in, should arrive at the age of twenty-one Ross, guardian, etc. vs. George Ross et al., years. The note was presented to Wm. in the court of common pleas of Potter coun- Jones, one of the executors, for payment ty, in equity, a proceeding to perpetuate tes- within one year after the death of the said timony, was admitted in evidence. The evi- Sobieski Ross. The inventory of the perdence is all returned here with, and the notes sonal estate of the deceased amounted to of testimony taken are hereto attached. $43,788.45, of which about $2,500 was unFrom the evidence the auditor finds the fol- available, leaving about $41,000 collectible, lowing facts. Sobieski Ross, the deceased, and about $700 came into the hands of the died at Coudersport, in the county aforesaid, executors in addition to the items in invenOctober 24, 1877, aged 49 years or there- tory. On October 14, 1864, the said Sobieski about. He had been a resident of Couders- Ross conveyed to Mary A. Ross, in trust for port all his life. He had been twice mar- John Ross, Mary Ross, and George F. Ross, a ried. He left to survive his children by his lot of land in the borough of Coudersport, a first wife, John S. Ross, Mary Ross Stanton, part of grantor's homestead lot. The lot and George F. Ross, and also Isabella Ross, conveyed was worth about $2,500. The his widow, and Thomas H. Ross, a child by consideration expressed in the deed was one his second wife, the said Isabella Ross. dollar. The deed was recorded October 31, John S. Ross was born January 7, 1848, 1864. The executor estimated the unimMary was born May, 1850, and George F. proved real estate of decedent at the time of was born June 19, 1860. Mary Ross, their his decease, at $50,000, and his improved mother, died November 20, 1862. Sobieski real estate at $17,000. The debts against Ross and Isabella Ross were married the the estate have all been paid, except the bal19th or 20th of October, 1864. On the morn-ance of the said note held by Mary A. Ross, |