upon the supply company for payment of the bills assigned. The brick company being unable to meet its note, its treasurer, Mr. Weaver, to satisfy the demands of the bank, prevailed with Van Keuren & Sons to give their note to the supply company for $1,500, approximately the amount of the unpaid bills of shipment, and had the supply company indorse this note over to the brick company; the brick company indorsing it over to the bank. This is the note in suit. It was given by Van Keuren & Sons and indorsed by the Product Supply Company in expectation that the brick would eventually be accepted by the city authorities. Whatever inducements were held out by Weaver to Van Keuren & Sons or the supply company to obtain this note from them, or whatever representations were made as to its subsequent renewal by the bank, the evidence fails to show that the bank was in any way involved therein. If Weaver assumed to speak for the bank, such fact could prejudice the bank only as it were shown that he was authorized so to do, or that the bank had accepted the note with knowledge of the representations made by him. There is no evidence to connect the bank with what transpired between the original parties to the note. By receiving the note, the bank extended the time of payment to the advantage of the brick company, the proceeds were ap plied as a credit to the latter's account, and the bills of shipment pledged as collateral were receipted and relinquished.

From the facts as they appear in the case, but one conclusion can be derived The bank was not only a holder for value, but a holder without any notice of infirmity in the instrument or any right of set-off in connection therewith. It was therefore a holder in due course. The facts in regard to the later note, which it was claimed was a renewal of the note in suit, do not support defendant's contention. Had this note been accepted by the bank as a renewal, it would have been an extinguishment of the right of action on the note in suit; but it was not so accepted. It was drawn by the same party, for the same amount, payable to the order of the supply company, and by the latter indorsed over to the brick company; but meanwhile the latter company had passed into the hands of a receiver. When tendered by the treasurer of the brick company to the bank, it was unavailable to the bank, being unindorsed, and was rejected. The reason assigned was that the bank was unwilling to do anything in the matter that would release the brick company from its liability on the other note. Being rejected by the bank, it remained in the hands of the treasurer of the brick company. Subsequently, when the bank desired to make demand for payment of the note in sult upon the maker, it procured from the treasurer of the brick company the note that had been rejected, attached it to the other, and forwarded both to its correspondent in Newark to be presented for payment. There

is nothing in all this that would warrant an inference that the bank had at any time accepted the note in renewal of the first. In Hart v. Boller, 15 Serg. & R. 162, 16 Am. Dec. 536, and in each of the other cases relied upon by appellant there were circumstances from which an intention to accept might be deduced, and it was held error for the court to exclude the jury from the decision of the question; but here was a positive and unquestioned refusal of the bank to accept the note when tenderd, with not a single circumstance to qualify it, or show a change of purpose in this regard, except the mere fact that, when the bank wanted to make demand upon the drawer, it procured the note to attach it to the original, so that both could be restored to the maker on payment. A finding by the jury, from such facts, that the bank had accepted the note, could not be sustained; and therefore no submission of the question was required. It was a case that called for binding instructions, and there was no error in directing the verdict for the plaintif. Judgment affirmed.

(217 Pa. 189)

MELOY V. PHILADELPHIA RAPID TRANSIT CO.

March 4

(Supreme Court of Pennsylvania 1907.) STREET RAILROADS INJULY TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE.

In an action by a boy seven years old against a street railway company for injuries received, instruction for defendant held proper, because of plaintiff's contributory negligence.

Appeal from Court of Common Pleas, Philadelphia County.

Action by John Meloy, Jr., by his father, and by John Meloy, Sr., against the Philadelphia Rapid Transit Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Henry J. Scott, for appellant. Russell Duane and Thomas Leaming, for appellee.

PER CURIAM. There was no evidence of negligence on the part of defendant. The car, going south on Second street, reached the corner of Lombard, at which point the middle of the street is occupied by a market shed, narrowing the street so that the track on the east side is close to the shed. As the car turned the curve into the track along the shed, the plaintiff, a boy of seven years, who was playing tag in the market shed, darted out and ran into the fender in the front of the car. The testimony to these facts is practically undisputed, and brings the case clearly under the authority of Sontgen v. Kittanning, etc., St. Ry. Co., 213 Pa. 114, 62 Atl. 523.

Judgment affirmed.

Act June 10, 1881 (P. L. 91), providing for service for posting and advertisement in proceedings on a municipal claim, applies to a registered owner who is dead.

3. SAME-SERVICE-DECEASED OWNER.

Where the record of a scire facias sur municipal lien for taxes shows on its face that the registered owner is dead, an acceptance of service for her or for "her estate" is fatally defective; there being no such legal entry as an "estate," and, as a designation of a party to be served with a writ, it is unknown to the law.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Mary J. Jones, executrix of Silas Jones, against George M. D. Beale. From a judgment making absolute the rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Walter Biddle Saul and Robert W. Finletter, for appellant. Ira Jewell Williams, Francis Shunk Brown, and Alex. Simpson, Jr., for appellee.

MITCHELL, C. J. Act March 14, 1865, § 9 (P. L. 324), after directing that it shall be the duty of owners of houses and lots in the city of Philadelphia to furnish descriptions of their lots to the chief engineer and surveyor (now the registry bureau of the department of public works), provides that "no property so returned shall be subject to sale for taxes thereafter to accrue as a lien of record thereon, except in the name of the owner as returned, and after recovery by suit and service of the writ on him made as in the case of a summons." By the supplementary act of March 29, 1867 (P. L. 600), the provision quoted was extended to "taxes or other municipal claims." The object of both of these acts, as stated by Sterrett, J., speaking of the act of March 23, 1866 (P. L. 303), in Simons v. Kern, 92 Pa. 455, was "to remedy the then existing grievances, fully recited in its preamble, among which were the oppressive costs and expenses to which property owners were subjected, and especially the sale of their property without notice to them." These remedial statutes, however, were found in one respect to be more drastic than the evil required, for in the case of a registered owner who was nonresident or could not be found no service as in case of summons could be made upon him, and the city was powerless to collect its just dues. In Simons v. Kern, 92 Pa. 455, it was held that service by posting and

advertisement (the practice under prior laws), and a return of nihil habet as to the registered owner, was a nullity, that judgment founded on it was void, and that the defect was one of jurisdiction of which the purchaser at the sheriff's sale was bound to take notice. To relieve the situation in which the city was thus placed the act of June 10, 1881 (P. L. 91), provided "that whenever it shall be made to appear, by affidavit filed of record, that after diligent search and inquiry registered owners of any real estate, against which a municipal claim has been or may hereafter be filed as a lien, by or in the name of any city of the first class, are nonresidents of such city, or cannot be found therein, it shall and may be lawful for the sheriff to whom any writ of scire facias for the collection of any such claim is directed, to proceed to make known the same by posting" and advertisement, etc.

The first question that arises relative to this act is whether it applies to registered taxes. They are not expressly named; the words of the act being "any municipal claim." But registered taxes are in a general sense municipal claims-i. e., claims by the city in its municipal capacity-and they are assimilated in their enforcement by lien of record and method of collection by scire facias. The hardship to the property owner by sale without notice, etc., was the same in both cases, and the remedial acts of 1865 and 1867 provided the same remedy for both, by the registration of the name of the owner, and prohibition to sell without service of the writ on him as in the case of a summons. If the act of 1881 does not apply to registered taxes, then as to them the city is still in the same position as it was when Simons v. Kern was decided, helpless when no service can be made on the registered owners. When the Legislature had before it for consideration two kinds of claims which it had classed together in the act of 1867, and which in practice had developed the same inconvenience to the city, it is not reasonable to suppose that it meant the remedy, equally needed and equally adapted to both, should be restricted to one. We are of the opinion that the act of 1881 applies to registered taxes as well as to other municipal claims. The appellee refers to the act of March 23, 1866 (P. L. 303), as in pari materia, and cites Philadelphia v. Scott, 72 Pa. 92, in which it was held that that act did not apply to registered taxes. But that decision was founded on the difference in prior laws in relation to taxes, historically reviewed by Read, J., and the reasoning of the opinion, never entirely satisfactory, is based on the difference in the kind and expense of advertisement (one by description of the property, the other merely by the name of the delinquent taxpayer), and the collection by different departments of the city government; i. e., the receiver of taxes in one case and the city solicitor in the other. The bearing of that case is not so direct as to require us to

make what we could not but consider an erroneous application of the law in this.

The remaining question under the act of 1881 concerns the method of service where as in the present case there is an owner registered, but he is dead. The act makes no express provision for such case. The appellee contends that, being casus omissus, we are relegated to the prior law, and service must be made as in mechanic's claims, in which service on an executor or administrator is held good, citing as parallel cases the proceedings under mortgages, pre-existing judgments, and ground rents. But there is a serious distinction between the classes of cases. In the class suggested of mortgages, judgments, ground rents, etc., the obligation grows out of personal contract or conduct which implies notice in its inception and the duty of keeping informed as to the status of the obligation itself from time to time. The tax or municipal claim, on the other hand, is an imposition in rem of which the owner has not necessarily any personal knowledge or notice at all. To secure him such notice was the object of the statutes involved, and we should not go back to the old evil unless under constraint by want of alternative. In Simons v. Kern, already cited, it is said: "Prior legislation as to the mode of service on registered owners so far as it is inconsistent with the supplement of 1867 was in effect repealed thereby, and, where it appears of record that the writ was not served 'as in the case of a summons,' there is clearly a want of authority either to issue or execute the writ." And in Philadelphia v. Cooper, 212 Pa. 306, 61 Atl. 926, it was held that a scire facias on municipal claim not served on the registered owner, and no affidavit filed that he was a nonresident or could not be found, was so fatally defective that it would not support an alias legally served, but issued after the lien of the claim had expired. Our Brother ELKIN said: "The lien of the mechanic or municipal claim being by statute, its validity, duration, and extent are wholly dependent upon compliance with the statutory provisions. If there is personal service on the registered owner, it must be in the same manner as a summons, as provided in the act of March 29, 1867 (P. L. 600). If personal service on the registered owner is not made, then an affidavit must be filed suggesting that the registered owner is a nonresident or cannot be found, to be followed by posting and publication, as provided by the act of June 10, 1881 (P. L. 91)." These extracts are but recent expressions of the uniform current of decision that in matters depending on statutory authority for their entire validity we must follow the statute strictly, and the further principle that remedial statutes should be applied so as to make the remedy coextensive with the evil, if it can be done by reasonable construction in furtherance of its object. The act of 1881, though making no express provision for the

*

case of the death of the registered owner, has a provision for the facilitation of the city's course in a closely analogous case. Where it is made to appear by affidavit filed of record after diligent search and inquiry that the owner is nonresident or cannot, be found, the sheriff is authorized to serve by posting and publication. Whether the registered owner is nonresident, or dead, produces the same obstruction to the statutory command to serve him as upon a summons. He is within the literal terms of the act that he cannot be found for purposes of service. The inconvenience to the city is the same, and the remedy for the one case is equally appropriate to the other. We are of opinion that it should be followed, and thus the statute be made efficacious to the full extent of the mischief it was intended to remedy.

Turning to the record in the present case, we find it bristling with irregularities. The claim is filed against an owner and Louisa C. Robeson, registered owner. A suggestion was filed by the city that "Louisa C. Robeson, the registered owner, is deceased, and the present owner of the lot of ground against which this claim is filed is the estate of Louisa C. Robeson, deceased, Samuel L. Robeson, administrator, and its name is therefore suggested on the record as defendant." On the same day the city filed an affidavit of service of the notice required by statute preliminary to the issue of a scire facias, in which the affiant deposes that Louisa C. Robeson is the owner or reputed owner and has a known residence in the city of Philadelphia, and that affiant had served the notice upon the said owner by handing it to Silas Jones. There is thus a direct contradiction between these two papers filed on the same day by the city as plaintiff. In the affidavit no information is given as to who Silas Jones was, nor why he should be served with notice for the registered owner whom the affidavit avers to be living. On the other hand, service of the notice itself, of which a copy was filed, was accepted by Silas Jones as "attorney for Samuel L. Robeson, administrator of the estate of Louisa C. Robeson, deceased." When we come to the scire facias the matter is not improved. It was issued on the claim filed as already noted against Louisa C. Robeson, owner or reputed owner, and Louisa E. Robeson, registered owner; recited the suggestion of the administrator as the present owner; and commanded the sheriff to "make known to the said Louisa C. Robeson, owner, and Louisa E. Robeson, Reg. Own., and the estate of Louisa E. Robeson, dec'd, Samuel L. Robeson, Adm., and to all such persons as may hold or occupy the said building and premises, that they be and appear be fore the judges of our court," etc. Service of this writ was accepted by Silas Jones "attorney for defendants." Notwithstanding the affidavit of service of the preliminary notice on Louisa C. Robeson, the registered owner, it is plain upon the whole record that

she was dead, and there could be no acceptance of service for her. There could be none for her "estate," as there is no such legal entity. It is a convenient phrase sometimes to identify the subject of litigation in the orphans' court, and in proceedings in rem it may be treated as harmless superfluity (as in Reece v. Haymaker, 164 Pa. 575, 30 Atl. 404), but as a designation of a party to be served with a writ it is unknown to the law. The third defendant was the administrator who prima facie had no concern with the real estate, and whose exceptional right to represent it, if any he had, was not set out. The acceptance of service of the writ was not by any one or for any one who answered to the statutory requirements, or could bind the rem. There was therefore an entire failure of such service as would sustain the judgment, and the sale, as in Simons v. Kern, was void for want of jurisdiction patent on the record of which the purchaser was bound to take notice.

The other point raised by the appellant, as to the presumption of a trust in Jones from his having purchased while apparently acting as attorney for the owners, need not be considered. The plaintiff's title not being marketable, the appellant was not bound to accept it.

The driver of a wagon is not negligent in approaching the crossing of a side street at an ordinary trot, where the horse is under such control that he can be stopped in about six feet. [Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1515.] 2. SAME-NONSUIT.

In an action against the driver of a wagon for injuries at a crossing, judgment of nonsuit is properly entered where the evidence shows conclusively that plaintiff walked against the side of defendant's wagon while the driver was looking at the travel in front of him on a crossstreet.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Wilmer Y. Henson and Le Roi Henson, by his next friend, against Joseph W. Arthur, trading as the Arthur Milk Company. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, and STEWART, JJ.

Meredith Hanna, for appellant. George L. Crawford, for appellee.

FELL, J. The plaintiff, a boy 13 years and 6 months old, was injured under these circumstances. With a companion of his own age, he was walking west on the south side of Columbia avenue. When he reached the east side of Seventeenth street, a car was standing at the crossing. He waited on the sidewalk until it started south, and then walked across Seventeenth street to the west side of the car track, where he was struck by the side step of the defendant's wagon. The wagon was a milk wagon with side doors and steps between the front and hind wheels, which projected slightly beyond the line of the wheels. It was moving north on the west side of the street, between the car track and the west curb. The speed of the horse was described by one of the plaintiff's witnesses in his examination in chief as a "fast trot," and on his cross-examination as an "ordinary trot," and by another of his witnesses as "just a trot." The wagon was stopped within six or eight feet of the point of collision. The car was 25 feet from the crossing when the boy passed behind it, and there was nothing on the street to obstruct his view or that of the driver.

It is contended that there was negligence' on the part of the driver in approaching a crossing at undue speed and in driving on the left side of the street. There would be force in these contentions if the plaintiff had been on the crossing in front of the horse, but, as he was in a position of safety when the horse and front wheels of the wagon passed in front of him, there is none. With a clear street and an unobstructed view, it cannot be said to be negligent to approach a crossing at an ordinary trot with a horse under such control that he can be stopped within six or eight feet. The driver was on the left side of the street because that was the only side open to him. He had stopped on that side near the middle of the block to deliver milk, a wagon was standing farther north on the opposite side between the curb and the car track, and, until the car was met and passed, he had no opportunity to cross over. He was lawfully where he was, and the "rule of the road" had no application except as between him and other drivers whose rights to that side of the street were superior to his. With them he took the chance of collision. Foote v. American Product Co., 195 Pa. 190, 45 Atl. 934, 49 L. R. A. 764, 78 Am. St. Rep. 806.

The only conclusion possible from the testimony is that the plaintiff walked against the side of the defendant's wagon when the driver's attention was directed to the travel in front of him on the cross-street.

The judgment of nonsuit is affirmed.

(105 Md. 388)

PRESTON et al. v. WILLETT et al. (Court of Appeals of Maryland. April 2, 1907.) WILLS CONSTRUCTION-LIFE ESTATE WITH POWER OF DISPOSITION.

Testator, after making certain devises and bequests, directed that the residue of his estate, after the death of his wife, should be held in trust for his six children, one equal sixth part of the annual income to be paid to each of his children during life, and from and after the death of his children he devised the share of his estate of the one so dying to such of that child's issue as he might by last will appoint, which appointment he empowered his children to make whether married or single; that in case of the death of any of his children intestate, but leaving issue living at his death, the share of his estate of the one so dying should be equally divided among such issue; that in case of the death of any of his children intestate and without leaving issue at his death the share of the one so dying should be held in trust to be equally divided among his surviving children and the issue of any deceased child or children. Held, that a child of testator, though not leaving issue, could by will dispose of her share of testator's estate.

Action between Achsah R. Preston and others and Mary W. L. C. Willett and others. From the decree, Achsah R. Preston and others appeal. Affirmed.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.

Alexander Preston and Frank Gosnell, for Preston and family. John E. Semmes, Whiteley & Whiteley, and Charles W. Field, for Willett. Charles McH. Howard, for the Safe Deposit & Trust Co., trustee.

BOYD, J. The Safe Deposit & Trust Company of Baltimore, which was appointed substituted trustee to administer the trusts created by the will of the late James Carroll, instituted this proceeding to obtain a construction to certain provisions of that will. Mr. Carroll had a wife, five daughters, and one son when his will was made, in 1876, all of whom survived him, but his widow died the year after he did. Mrs. Preston, who is still living, was the only child of Mr. Carroll who was married when the will was made, and she then had several children. Prior to the death of Mr. Carroll, which occurred in 1887, his daughter Mary L. married James Holmes Whitely, and after his death Sophia G. married John O. Turnbull and Catharine L. married John C. Willett. His son Harry died intestate and unmarried in 1888, and his daughter Sallie W. is still living and unmarried. None of his children have had issue except Mrs. Preston, who has several children and grandchildren, and Mrs. Willett, who has one daughter, Mary W. L. C. Willett. Mrs. Turnbull died in 1906, without issue, but leaving a last will and testament by which, after providing for her debts and funeral charges and bequeathing a miniature of her deceased husband, she left to her niece, Mary

66 A.-17

by created to such of his or her issue as he or she may by last will appoint and for such estates and with such limitation as may be in said will set forth, which appointment I hereby empower my children to make whether married or single. (2) And in case of the death of any of my said children intestate, but leaving issue living at his or her death; I give, devise and bequeath the share of my estate of the one so dying to be equally divided, among such issue per stirpes and not per capita, absolutely and discharged from the trust hereby created. (3) And in case of the death of any of my said children intestate and without leaving issue at his or her death, then the share of the one so dying shall be held in trust as aforesaid to be equally divided among my surviving children and the issue of any deceased child or children per stirpes, my children's portions thereof to be held upon the same trusts as are herein provided for their original shares." We have, for convenience of reference, inserted numbers before those clauses, although' they are not in the original. It is clear that those clauses made provision for at least three classes: (1) That a child of the testator who had issue could will his or her onesixth share to any one or more of such issue; (2) that the share of a child dying intestate, but leaving issue, should go to such issue; and (3) that if a child died intestate, without leaving issue, the share of such child should be equally divided among the testator's sur viving children and the issue of deceased children per stirpes. It is equally clear that the testator did not in terms make any disposition of the share of a child who died testate and without leaving issue, unless some such construction be given the will as is contended for by the appellees. It was suggested by the appellants that the expression used