duly nominated for this and other offices, were provided by the county commissioners, furnished to the election officers, and by them to the voters, as required by law. Many of the electors procured, at other places, printed slips or tickets of the form shown in the second specification of the petition, including a list of township officers to be voted for, with directions to mark names of candidates for the respective offices, prepared with adhesive paste on the reverse side, and of the size and form the same should have appeared on the official ballot if the persons named had been duly nominated for the respective offices. They affixed said slip tickets upon the right-hand column of the offi cial ballot, which was devoted to blank spaces, and when so affixed the titles of the offices, directions for insertion of names, and the spaces indicated and defined by lines pro vided in the official ballot for township officers were covered and obliterated, and the titles of offices, directions for marking, spaces, and names provided therein on the prepared slip ticket substituted therefor. Cross marks were also made in the squares opposite certain names, to the right of the names. The election officers counted, as votes for the respective persons, the names on said slips having the cross marked opposite their names. Seventy-six ballots so cast were counted for Albert McCowin, and 75 ballots so cast were counted for R. J. Miller. The return of the election officers then showed that, for the office of school director, A. G. McGinnis had 54 votes; John M. Scott, 25 votes; M. L. Andrews, 13 votes; W. A. Kenney, 62 votes; Albert McCowin, 90 votes; R. J. Miller, 80 votes; J. Q. Adams, 1 vote." Certificates of election were accordingly issued to appellants; but the court below, holding that the 76 and 75 ballots counted as aforesaid for them, respectively, were illegally cast, adjudged and determined that W. A. Kenney and A. G. McGinnis, having received a majority of all the lawful votes cast at said election for the office of school director, etc., were duly elected to said office.

The question presented for our consideration is whether the learned judge erred in construing the act of 1893, and ruling as he did against appellants. The first section of the act declares "that all ballots cast in elections for public officers within this commonwealth shall be printed and distributed at the public expense," etc., as thereinafter provided; and section 27 declares: "None but ballots provided in accordance with the provisions of this act shall be counted." After specifically directing the manner in which the names of the candidates of each political party shall be arranged on the official ballot, etc., section 14 declares: "There shall be left at the right of the groups of candidates for presidential electors, and of the list of candidates for other offices (or under the title of the office itself for which an election is to be held in case there be no candidates legally nominated

therefor), as many blank spaces as there are persons to be voted for, by each voter, for such office, in which spaces the voter may insert the name of any person whose name is not printed on the ballot as a candidate for such office, and such insertion shall count as a vote without the cross mark hereinafter mentioned." The act also provides for delivery of one official ballot, by the proper election officer, to each qualified voter as soon as he is admitted within the rail; and the next or twenty-second section provides that, on receipt thereof, "the voter ** shall prepare his ballot by marking, or by inserting in the blank spaces prepared therefor any name not already on the ballot," etc. The "marking" mentioned in the last quotation is applicable only to candidates whose names are printed on the official ballot. They cannot be legally voted for in any other way than by marking, as specified in said section. In the case of a substituted nomination, filed with or transmitted to the county commissioners after the ballots have been printed, said commissioners are required by the twelfth section to "prepare and distribute with the ballots suitable slips of paper bearing the substituted name, together with the title of the office, and having adhesive paste upon the reverse side, which shall be offered to each voter with the regular ballot and may be affixed thereto." The only prescribed mode of voting for persons "whose names are not already on the ballot" is "by inserting [their names] in the blank spaces prepared therefor" in the right-hand column of the official ballot. It is the "name" only that is to be thus inserted, and not the title of the office to be filled, etc. The latter is already printed there, and constitutes part of the ballot prepared for the use of voters. The name or names, as the case may be, cannot be inserted anywhere in said right-hand column, but only in the appropriate blank spaces prepared therefor. The voter is not authorized to insert anything in any part of said column, save and except in the blank spaces prepared for names not already on the ballot. The manner of inserting is not prescribed. It may therefore be done in any appropriate way, such as by writing, stamping with metallic or rubber stamp, or by covering the proper blank space, in whole or in part, with a slip ticket or sticker, securely attached to said space by adhesive paste or other suitable material, on which ticket or sticker is printed or written a name or names "not already on the ballot." Everything necessary or proper to be done by the voter, in order to record the free and unconstrained expression of his choice of persons to fill the respective offices, is thus provided for, and the manner in which said right of choice shall be exercised is specifically pointed out. If he desire to vote for any of those whose names are printed on the official ballot, he must do so by "marking," as directed by the act. If he wishes to vote for persons whose names are not already on the

ballot, he can do so by "inserting" their names in the blank spaces prepared therefor; but he has no right to insert anything else in said blank spaces, or in any other part of the right-hand column. In so far as the mode of voting is thus specifically prescribed by the act, all other modes are, by necessary implication, forbidden. Expressio unius, est exclusio alterius. The ordinary rule, as has been stated by recognized authority, is that, where power has been given to do a'thing in a particular way, then affirmative words, marking out the way, by necessary implication prohibit all other ways. To hold, as we are virtually asked to do by appellants, that by virtue of the authority given the voter to insert, in the blank spaces provided therefor, names not already on the official ballot, he may so use a previously prepared slip ticket, given to him by an outside party, as to entirely cover the right-hand column of the official ballot, and thus effectually obliterate or conceal everything printed thereon, would not be construction, but judicial legislation of the worst type. Moreover, the use of such a blanket ticket or sticker would tend to defeat the main purposes of the act. The righthand column is part of the official ballot. In addition to the requisite number of blank spaces for the insertion of names not already on the ballot, the respective titles of the different offices to be filled, and instructions as to the number of names that may be inserted underneath said titles, respectively, are intended as guides, not only for the voter, but also for the election officers. To permit the voter to procure, from outside parties, a slip ticket or sticker, corresponding in size with said column, and paste the same over the printed matter, as well as the blank spaces thereon, would be contrary to the letter, as well as the spirit, of the act. But it is enough for us to know that no authority can be found in the act for doing any such thing. We have no doubt as to the correctness of the conclusion reached by the court below, and hence the decree should be affirmed. Decree affirmed, and appeal dismissed, with costs to be paid by appellants.

SECOND NAT. BANK OF CLARION v. MORGAN et al. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

NOTES-ACTION BY ASSIGNEE-AFFIDAVIT OF DEFENSE-WANT OF CONSIDERATION-NOTICE -NATIONAL BANKS-USURY.

1. In an action on a note assigned to plaintiff before maturity for value, a defense that it was obtained by the payee by fraudulent representations to the maker is of no avail, it not being alleged that this was known to plaintiff.

2. An affidavit of defense alleging that defendant expects to be able to prove that plaintiff was not a holder for value before maturity of the note sued on, but took it under circumstances and with knowledge of facts to put it on no

tice and inquiry, which would have led to a discovery of the fraud by which the payee obtained it from the maker, is insufficient, because not alleging facts or circumstances on which to found a belief.

3. A bona fide holder of a note, for value, can recover thereon, though he took it under circumstances which ought to excite the suspicion of a prudent man that the payee obtained it by fraudulent representations.

4. An allegation, in an affidavit of defense, of an expectation of ability to prove, must be predicated of facts previously stated; and, in an allegation that defendant expects to be able to prove that plaintiff is not a bona fide holder, there is no assertion that he was not a bona fide holder.

5. An assertion that plaintiff paid for a note 75 per cent. of its face value is inconsistent with an allegation or inference that it was not obtained for value.

6. In an action by an assignee of a note, plaintiff is not put to proof of his title by an allegation of want of consideration, by reason. of a defect in the article for which the note was given.

7. Act Cong. June 3, 1864, § 30, relative to the taking of usury by national banks, provided that where illegal interest is stipulated, but not paid, only the sum lent, without interest, can be recovered, and that, where such illegal interest has been paid, twice the amount so paid can be recovered in a penal action against the bank by the persons paying it, does not apply to the discounting by the bank for the payee of a note given in payment of an article, and stipulating for legal interest, and, if it did, would not avail the maker.

Appeal from court of common pleas, Clarion county; E. Heath Clark, Judge.

Action by the Second National Bank of Clarion, as assignee of a note, against Lawson Morgan and others. Judgment for defendants. Plaintiff appeals. Reversed.

J. T. Maffett, for appellant. W. L. Corbett, Don C. Corbett, John W. Reed, Harry R. Wilson, and G. G. Sloan, for appellees.

GREEN, J. The affidavit of defense in this case makes three averments:

First, that the consideration of the note in suit has failed, and that the note was obtained by the payees from the makers by means of false and fraudulent representations respecting a certain Percheron stallion. As these facts are not alleged to have been known to the plaintiff bank, and as the note is negotiable, and the bank acquired it for value, and before maturity, this defense is of no avail against the plaintiff.

Second, that the defendants expect to be able to prove that the plaintiff was not a holder for value, before maturity, but that the bank took the note under circumstances and with such knowledge of the facts as to put it upon notice and inquiry, which would have led to a discovery of the fraud. This defense is unavailing, because the affidavit alleges no facts or circumstances whatever upon which to found a belief, and the mere averment of a belief, without stating the facts upon which it is founded, gives no information to the court, upon which it can determine their efficiency; and, if there are no facts and circumstances known to the affi

ants, there is nothing upon which to ground any belief. But, independently of this consideration, the affidavit of defense alleges only, in its second clause, that the plaintiff took the note under such circumstances aud with such knowledge of the fraud as were sufficient to put it upon inquiry, and that inquiry would have led to a discovery of the fraud, and it nowhere alleges actual knowledge of the fraud when the note was taken. The learned court below considered that this averment was sufficient to prevent judgment. But this court decided as long ago as 1870, in a well-considered case, and in an exhaustive and elaborate opinion by Mr. Justice Read, in the case of Phelan v. Moss, 67 Pa. St. 59, that such a defense, when proved by testimony, was no defense at all in an action on a negotiable note. We there held that a holder of a negotiable note, bona fide, for value, without notice, can recover it, notwithstanding he took it under circumstances which ought to excite the suspicion of a pru dent man. Justice Read reviewed the authorities in England and this country, and showed, with conclusive force, that even in England, where, for a short time, the opposite doctrine obtained a lodgment, starting with the case of Gill v. Cubitt, 3 Barn. & C. 466, it had been altogether abandoned and overruled. This was accomplished through a series of decisions, when, in the last of them (Goodman v. Harvey, 4 Adol. & E. 870), Lord Denman said: "We have shaken off the last remnant of the contrary doctrine. Where the bill has passed to the plaintiff, without any proof of bad faith in him, there is no objection to his title." Justice Read further reviews both the federal and state decisions in this country, and includes in them the case of Beltzhoover v. Blackstock, 3 Watts, 20, in which Judge Sergeant expressed a concurrence, though unnecessarily, in the doctrine of Gill v. Cubitt. And he also showed that this court had never followed Beltzhoover v. Blackstock in this regard, but had followed the opposite rule. He concludes by assuming that the note was obtained by fraud on the maker, and reviewing the circumstances of suspicion, among which was the fact that the plaintiff bought the note (which was for $250, against a solvent drawer) for $100, he adds: "Neither one nor all these facts, if found by the jury, proved mala fides on the part of the holder, or brought home to him knowledge of the fraud; but, on the contrary, it was clear that he was a bona fide holder for value, without notice, and, of course, entitled to recover." This case has been many times recognized and followed by this court, and never departed from, to this date. In McSparran v. Neeley, 91 Pa. St. 17, Mr. Justice Woodward said, "Phelan v. Moss has been uniformly followed, since it was decided"; and in that case, also, we decided that the indorsee of a negotiable note, who took it before maturi

ty, bona fide, for value, without notice, is entitled to recover from the maker, though a fraud was practiced on the maker in obtaining his signature to the note; the fact that a negotiable note, which was obtained by fraud, was taken by the holder under circumstances which ought to have excited suspicion, will not defeat a recovery; it must be shown that it was taken mala fide. Most extended references both to decided cases and text writers could be added to the foregoing, but it would be a waste of time and space. We conclude, therefore, that the averment upon this subject in the second clause of the affidavit of defense in this case is of no consequence whatever, and could not suffice to put the plaintiff to any proof on the trial. The burden of proving actual bad faith would still rest on the defendants.

The averment in the first part of the second clause, that the affiants expect to be able to prove on the trial that the plaintiff is not a bona fide holder, is not an assertion of the fact, but only of the expectation of ability to prove it; and the basis of the expectation is immediately stated, by way of illustration, as being the taking of the note under circumstances of suspicion. No actual circumstance of suspicion is stated, and no fact impeaching the bona fides of the holder, or as affording a ground of belief to that effect, appears anywhere in the affidavit. If, on the trial, the defendants should prove exactly what they have alleged in the second clauseof the affidavit, to wit, that they believe, and expect to be able to prove, that the plaintiff was not a bona fide holder, for value, and that he took the note under circumstances of suspicion, they would have accomplished nothing. Instead of proving belief, they would be obliged to prove the fact of mala fides; and, although they proved actual circumstances of suspicion, it would avail them nothing. The authorities which hold that it is sufficient, in an affidavit of defense, to aver an expectation of ability to prove, are predicated of facts previously stated, and not of mere beliefs or inferences or conclusions. It may be added that the third clause of the affidavit not only admits, but distinctly asserts, that the plaintiff paid for the note 75 per cent., or thereabouts, in money, of its face value, and is therefore fatally inconsistent with any allegation or inference that the note was not acquired for value. We do not consider the case of Hutchinson v. Boggs, 28 Pa. St. 294, and Lerch Hardware Co. v. Bank, 109 Pa. St. 240, as applicable to this case, because here the defense relates to the want of consideration in the sale of a defective horse, and in that kind of defense the holder is not put to proof of his title to the note by the allegation of want of sufficient consideration. We regard the first and second clauses of the affidavit as entirely insufficient to prevent judgment.

The third clause is in no better condition.

It avers that the plaintiff, being a national bank, took usury, in discounting the note at 25 per cent., or upwards, of its value. It is impossible to understand how any allegation of usury can be made as to such a note as this, or how these defendants can have any interest in the usury, in any event. The note was not given for a loan of money, but for the price of a horse sold to them. They agreed to pay $833.33 for the horse, and not for a loan of a sum of money 25 per cent. less than that amount. In the case of Barnet v. Bank, 98 U. S. 555, the supreme court of the United States, construing the act of congress of June 3, 1864 (section 30), on the subject of taking usury by national banks, said that the act defined two categories of such cases, which they then stated. This case cannot possibly come within the first category of the act, to wit, "where illegal interest has been knowingly stipulated for, but not paid, then only the sum lent without interest can be recovered," because no sum of money was lent, and no illegal interest was stipulated for; the rate mentioned in the note itself being 6 per cent., which is a lawful rate. The second category is in these words, to wit: "Where such illegal interest has been paid that twice the amount só paid can be recovered in a penal action of debt, or suit in the nature of such action, against the offending bank brought by the persons paying the same or their legal representatives." There are at least three fatal reasons why the defendants can take no benefit from this provision: (1) It has been decided several times by the supreme court of the United States that this defense cannot be made, even by the maker of the note, in an action against him on the note (Barnet v. Bank, 98 U. S. 555), nor by the surety (Stephens v. Bank, 111 U. S. 197, 4 Sup. Ct. 336, 337), because the only remedy given by the act of congress is by a penal action to be brought for the recovery of double the amount of the illegal interest charged, and it therefore cannot be set off in an action on the note. (2) Because no persons but those who paid the illegal interest, or their legal representatives, can recover it. (3) Because no illegal interest was charged or paid upon a "sum lent," and therefore none can be recovered. The defendants, if they owe anything on this note to the plaintiff, owe the whole amount of $833.33, with 6 per cent. interest, less any payments that were made on account. They do not owe it for money lent, but for the price of a horse. So far as these defendants are concerned, it is a matter of no consequence whether the plaintiff paid for the note its whole amount, or any sum less than that. Driesbach v Bank, 104 U. S. 52, is to the same effect as the above-cited cases. Judgment reversed, and record remitted, with directions to enter judgment against the defendants for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be so entered.

WADE et al. v. BOROUGH OF OAKMONT et al. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

DIVISION OF BOROUGH SPECIAL TAX LEVY BY NEW BOROUGH-DECREE ADJUSTING INDEBTED NESS-AMENDMENT NUNC PRO TUNC - LIMITATIONS ON INDEBTEDNESS.

1. Act June 1, 1887 (relating to municipal indebtedness in case of the formation of a new borough by detaching part of the territory of another borough), § 1, makes it the duty of the court to appoint an auditor, who shall ascertain and report to it the existing liabilities, with the form of a decree adjusting the liabilities for all indebtedness; and that the court may direct a special tax to be levied on the property so detached from such borough, for the payment of so much of the indebtedness as may be awarded against it, and direct how it shall be assessed and collected. Held, that such new borough cannot levy a special tax to meet its part of the debts of the old borough, in the absence of direction therefor in such decree.

2. But where the new borough levies, collects, and pays in discharge of such debts, in the absence of such decree, only so much as is due, neither it nor its officers are liable to any action by taxpayers.

3. Where a special tax has been levied by the new borough to meet such debts without authority, because not directed to do so by such decree, the court may amend its decree nunc pro tunc, and thus legalize the prior ordinance providing for the tax; and this should be done where the court finds that the special tax is a reasonable and proper levy.

4. It is within the discretion of the council to contract in good faith for lighting the streets of a borough, to promote the comfort and convenience of its citizens.

5. An annual sum, to be paid monthly, for lighting streets for a limited term, is not the incurring of a new indebtedness, within the meaning of Const. art. 9, § 8, and Act 1874, limiting municipal indebtedness to 2 per cent. of the last assessed valuation.

Appeal from court of common pleas, Allegheny county.

Bill by William Wade and others against the borough of Oakmont, Godfrey Brenner, burgess, A. McGee and others, members of the city council, John Riesh, collector, and S. B. Clements, treasurer, of such borough, and the Oakmont & Verona Light, Heat & Power Company, for an injunction and other relief. From a decree for defendants, plaintiffs appeal. Modified.

C. C. Dickey and Hunter, Ivory & Beatty, for appellants. J. P. Hunter, for appellees.

DEAN, J. By a decree of the court of quarter sessions of Allegheny county, on March 4, 1889, defendant was created a municipality by the name of borough of Oakmont. The greater part of its territory came off the borough of Verona, and the proceedings to constitute the new one were had under the act of June 1, 1887.1 The municipal indebtedness of the old borough was $23,376.75, and, under the same act, the proportion of this, fixed as that of the new borough,

1 Relating to municipal indebtedness in case of the formation of a new borough by detaching part of the territory of an existing borough, etc.

was $13,680. This was specifically determined by the decree of incorporation. The rate of interest on this debt, and date of payment of interest and principal, were, of course, settled by the contract of the old borough, with its creditors, when the debt was created. Therefore these matters were beyond the reach of either the new borough or the court. But no direction was given the new borough as to levying a special tax, as the act authorizes, to pay the interest of this debt, or discharge the principal as it matured. Oakmont's proportion of the interest and principal has, up to the date of this proceeding, been met out of the annual taxes levied under the general borougn act of 3d of April, 1851. In 1893 the borough council of Oakmont, believing the lighting of the streets by natural gas insufficient for the needs of the citizens, determined to introduce electric lights, and accordingly passed an ordinance authorizing the burgess to contract with the Oakmont & Verona Heat, Light & Power Company to furnish such light. The burgess was authorized to contract for 20 lights, at the price of $80 per light,-$1,600 annually,-payable monthly, for a term of seven years; and the contract was made. Although the adoption of the ordinance was in July, the new step had been practically resolved upon more than a month before; so, at a meeting of council (2d of June, 1893), provision was made to meet by taxation the current expenses and obligations, including this one. The assessed valuation of the borough was $1,135,655. A tax of five mills was levied for borough purposes, and, in addition, a special tax of three mills. Of this last, $1,180.95 was appropriated to meet debt and interest of the apportioned part of the Verona borough indebtedness, falling due in spring of 1894, and the balance-$2,254-to contingencies. The five-mill tax, by computation, produced the sum of $5,725. $3,615 of this was appropriated for borough purposes, and the balance-$2,110-for contingencies; making altogether, for contingent expenses, the large sum, relatively, to borough expenses, of $4,364. It was out of this contingent fund that it was intended to provide for the light contract authorized by ordinance on 31st of July, following.

On October 3, 1893, plaintiffs filed this bill, averring the foregoing facts, and concluding therefrom: (1) That there was no authority in law for the levy of the three-mill tax, amounting to $3,435, because in the decree incorporating the borough, and apportioning the debt of Verona borough, no order was made by the court for the levy of a special tax, under the act of 1887, to meet that part imposed on the new borough. (2) That the sum raised by the three-mill tax, even if authorized, was largely in excess of any sum required for the annual payment of interest and the fraction of maturing principal and was therefore illegal. (3) That the amount specified to meet "contingencies" is largely

in excess of any requirements for current purposes, and therefore, to the extent of such excess, is illegal. (4) That the purpose of setting aside so large an amount for contingencies was to provide means to fulfill the contemplated contract for the electric light; that this was not an antecedent appropriation for a specific debt, nor a specific tax for a special purpose; that, such contract being the creation of a debt to a large amount, for a particular purpose, it could not be provided for by a contingent fund, which last could only be authorized for uncertain incidental expenses of the borough, that could not reasonably be foreseen. Therefore, the levy, of a special tax, for these reasons, was unlawful. (5) That a contract by the council of the borough for electric light, without the approval of the voters, is ultra vires. Afterwards the bill was amended so as to aver that the indebtedness of the borough, at the date of the ordinance, was $10,023.96; that the aggregate debt for the electric light, seven years, at years, at $1,600 per year, would amount to $11,200; that this, added to the debt then existing, would make the whole clebt largely in excess of that allowed by law, unless concurred in by a vote of the electors of the borough, which was not had thereon; therefore, for that reason, was illegal. The prayer was for an injunction restraining the collector from collecting the three-mill tax, the council from proceeding to carry out the contract; that the ordinance authorizing the same be declared void; and that the borough be ordered to refund the amount of tax where already collected. The facts as averred in the bill were, in substance, admitted by the defendant. The inferences sought to be drawn from them, and all the conclusions of law, that the ordinances of 2d of June, and 31st of July, 1893, were illegal and void, were denied. The case was set down for argument on bill and answer.

The court below found that the levy of the three-mill tax, to meet the interest and principal of Oakmont's share of the Verona borough debt, was necessary and proper, under the circumstances, and was legal; that the contract with the light, heat, and power company was within the scope of the powers granted boroughs by the act of 1851,-"to light the streets,"-and was wholly within the discretion of councils; that the $1,600 per year, for seven years, for the light, was not "a new indebtedness," within the meaning of section 8, art. 9, of the constitution, or of the second section of the act of assembly of 1874, but was only a part of the current expenses of the borough from year to year; further, that even if this tax were, within the meaning of the constitution and act of 1874, a "new indebtedness," it would not, when added to the previous indebtedness, equal 2 per cent. of the assessed valuation, and therefore, under the decision in Rainsburg Borough v. Fyan, 127 Pa. St. 74, 17 Atl. 678, it was not necessary to file a