« ΠροηγούμενηΣυνέχεια »
upon the supply company for payment of the is nothing in all this that would warrant an bills assigned. The brick company being un Inference that the bank bad at any time acable to meet its note, its treasurer, Mr. Weav. cepted the note in renewal of the first. In er, to satisfy the demands of the bank, pre Hart v. Boller, 15 Serg. & R. 162, 16 Am. Dec, vailed with Van Keuren & Sons to give their 536, and in each of the other cases relied upnote to the supply company for $1,500, ap on by appellant there were circumstances proximately the amount of the unpaid bills from which an intention to accept might be of shipment, and had the supply company in- deduced, and it was held error for the court dorse this note over to the brick company; the to exclude the jury from the decision of the brick company indorsing it over to the bank. question ; but here was a positive and unquesThis is the note in suit. It was given by tioned refusal of the bank to accept the note Van Keuren & Sons and indorsed by the Prod- when tenderd, with not a single circumstance uct Supply Company in expectation that the to qualify it, or show a change of purpose in brick would eventually be accepted by the this regard, except the mere fact that, when city authorities. Whatever inducements were the bank wanted to make demand upon the held out by Weaver to Van Keuren & Sons or drawer, it procured the note to attach it to the supply company to obtain this note from the original, so that both could be restored to them, or whatever representations were made the maker on payment. A finding by the as to its subsequent renewal by the bank, the jury, from such facts, that the bank had acevidence fails to show tbat the bank was incepted the note, could not be sustained; and any way involved therein. If Weaver assumed therefore no submission of the question was to speak for the bank, such fact could prejudice required. It was a case that called for bindthe bank only as it were shown that he was ing instructions, and there was no error in authorized so to do, or that the bank had directing the verdict for the plaintii. accepted the note with knowledge of the Judgment affirmned. representations made by him. There is no evidence to connect the bank with what transpired between the original parties to the
(217 Pa. 189) note. By receiving the note, the bank ex MELOI V. PHILADELPHIA RAPID tended the time of payment to the advantage
TRANSIT CO. of the brick company, the proceeds were ap
(Supreme Court of Pennsylvania March plied as a credit to the latter's account, and
1907.) the bills of shipment pledged as collateral
STREET FAILROADS INJULY TO PERSON ON were receipted and relinquished.
TRACK-CONTRIBUTORY NEGLIGENCE. From the facts as they appear in the case, In an action by a boy seven years old against but one conclusion can be derived. The bank a street railway company for injuries received,
instruction for defendant held proper, because was not only a holder for value, but a holder
of plaintiff's contributory negligence. without any notice of Infirmity in the instrument or any right of set-off in connection
Appeal from Court of Common Pleas, Phil. therewith. It was therefore a holder in duo
adelphia County, course. The facts in regard to the later note,
Action by Joho Meloy, Jr., by his father, which it was claimed was a renewal of the
and by John Meloy, Sr., against the Philanote in suit, do not support defendant's con
delphia Rapid Transit Company. From tention. Had this note been accepted by the
judgment for defendant, plaintiff appeals. bank as a renewal, it would have been an
Affirmed. extinguishment of the right of action on the
Argued before MITCHELL, O. J., and note in sult; but it was not so accepted. It
FELL, BROWN, MESTREZAT, POTTER, was drawn by the same party, for the same
ELKIN, and STEWART, JJ. amount, payable to the order of the supply Henry J. Scott, for appellant. Russell company, and by the latter indorsed over to Duane and Thomas Leaming, for appellee.
company had passed into the hands of a re ceiver. 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 suit 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
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.
(217 Pa. 182)
advertisement (the practice under prior laws), JONES V. BEALE.
and a return of nihil habet as to the register(Supreme Court of Pennsylvania. March 4,
ed owner, was a nullity, that judgment found1907.)
ed on it was void, and that the defect was 1. MUNICIPAL CORPORATIONS MUNICIPAL one of jurisdiction of which the purchaser at CLAIMS-ENFORCEMENT.
the sheriff's sale was bound to take notice. Act June 10, 1881 (P. L. 91), providing for
To relieve the situation in which the city was service by posting and advertisement in proceedings on a municipal claim, applies to registered
thus placed the act of June 10, 1881 (P. L. taxes; they being, in a general sense, , municipal 91), provided “that whenever it shall be made claims.
to appear, by affidavit filed of record, that 2. SAME.
after diligent search and inquiry registered Act June 10, 1881 (P. L. 91), providing for service for posting and advertisement in pro
owners of any real estate, against which a ceedings on a municipal claim, applies to a reg municipal claim has been or may hereafter istered owner who is dead.
be filed as a lien, by or in the name of any city 3. SAME-SERVICE-DECEASED OWNER.
of the first class, are nonresidents of such Where the record of a scire facias sur municipal lien for taxes shows on its face that the
city, or cannot be found therein, it shall and registered owner is dead, an acceptance of serv may be lawful for the sheriff to whom any ice for her or for "her estate" is fatally defec writ of scire facias for the collection of any tive; there being no such legal entry as an "es
such claim is directed, to proceed to make tate," and, as a designation of a party to be served with a writ, it is unknown to the law.
known the same by posting” and advertise
ment, etc. Appeal from Court of Common Pleas, Phil
The first question that arises relative to adelphia County.
this act is whether it applies to registered Action by Mary J. Jones, executrix of Silas
taxes. They are not expressly named; the Jones, against George M. D. Beale. From a
words of the act being “any municipal claim.” judgment making absolute the rule for judg
But registered taxes are in a general sense ment for want of a sufficient affidavit of de
municipal claims—i. e., claims by the city in fense, defendant appeals. Reversed.
its municipal capacity—and they are assimiArgued before MITCHELL, C. J., and
lated in their enforcement by lien of record FELL, BROWN, MESTREZAT, POTTER, and method of collection by scire facias. The ELKIN, and STEWART, JJ.
hardship to the property owner by sale withWalter Biddle Saul and Robert W. Finlet out notice, etc., was the same in both cases, ter, for appellant. Ira Jewell Williams, Fran and the remedial acts of 1865 and 1867 procis Shunk Brown, and Alex. Simpson, Jr., for vided the same remedy for both, by the regisappellee.
tration of the name of the owner, and probi
bition to sell without service of the writ on MITCHELL, C. J. Act March 14, 1865, $him as in the case of a summons. If the act 9 (P. L. 324), after directing that it shall be
of 1891 does not apply to registered taxes, the duty of owners of houses and lots in the then as to them the city is still in the same city of Philadelphia to furnish descriptions position as it was when Simons v. Kern was of their lots to the chief engineer and sur decided, helpless when no service can be made veyor (now the registry bureau of the depart on the registered owners. When the Legisment of public works), provides that “no prop lature had before it for consideration two erty so returned shall be subject to sale for kinds of claims which it had classed together taxes thereafter to accrue as a lien of record in the act of 1867, and which in practice had thereon, except in the name of the owner as developed the same inconvenience to the city, returned, and after recovery by suit and serv it is not reasonable to suppose that it meant ice of the writ on him made as in the case the remedy, equally needed and equally adaptof a summons." By the supplementary act of ed to both, should be restricted to one. We March 29, 1867 (P. L. 600), the provision quot are of the opinion that the act of 1881 aped was extended to “taxes or other municipal plies to registered taxes as well as to other claims." The object of both of these acts, as municipal claims. The appellee refers to the stated by Sterrett, J., speaking of the act of act of March 23, 1866 (P. L. 303), as in pari March 23, 1866 (P. L. 303), in Simons v. Kern, materia, and cites Philadelphia v. Scott, 72 92 Pa. 455, was “to remedy the then existing Pa. 92, in which it was held that that act did grievances, fully recited in its preamble, not apply to registered taxes. But that deciamong which were the oppressive costs and sion was founded on the difference in prior expenses to which property owners were sub laws in relation to taxes, historically reviewjected, and especially the sale of their prop ed by Read, J., and the reasoning of the opinerty without notice to them.” These remedi ion, never entirely satisfactory, is based on al statutes, however, were found in one re the difference in the kind and expense of adspect to be more drastic than the evil requir vertisement (one by description of the proped, for in the case of a registered owner who erty, the other merely by the name of the dewas nonresident or could not be found no linquent taxpayer), and the collection by difservice as in case of summons could be made ferent departments of the city government; upon him, and the city was powerless to col i. e., the receiver of taxes in one case and the lect its just dues. In Simons v. Kern, 92 Pa. city solicitor in the other. The bearing of 455, it was held that service by posting and that case is not so direct as to require us to
make what we could not but consider an er case of the death of the registered owner, roneous application of the law in this. has a provision for the facilitation of the
The remaining question under the act of city's course in a closely analogous case. 1881 concerns the method of service where Where it is made to appear by affidavit filed as in the present case there is an owner regis of record after diligent search and inquiry tered, but he is dead. The act makes no ex that the owner is nonresident or cannot, be press provision for such case. The appellee found, the sheriff is authorized to serve by contends that, being casus omissus, we are posting and publication. Whether the regisrelegated to the prior law, and service must tered owner is nonresident, or dead, produces be made as in mechanic's claims, in which the same obstruction to the statutory comservice on an executor or administrator is mand to serve him as upon a summons.
He held good, citing as parallel cases the pro is within the literal terms of the act that he ceedings under mortgages, pre-existing judg. cannot be found for purposes of service. ments, and ground rents. But there is a se The inconvenience to the city is the same, rious distinction between the classes of cases. and the remedy for the one case is equally In the class suggested of mortgages, judg- appropriate to the other. We are of opinments, ground rents, etc., the obligation ion that it should be followed, and thus the grows out of personal contract or conduct statute be made efficacious to the full extent which implies notice in its inception and the of the mischief it was intended to remedy. duty of keeping informed as to the status of Turning to the record in the present case, the obligation itself from time to time. The
we find it bristling with irregularities. The tax or municipal claim, on the other hand, claim is filed against an owner and Louisa C. is an imposition in rem of which the owner Robeson, registered owner. A suggestion was has not necessarily any personal knowledge or Aled by the city that “Louisa C. Robeson, the notice at all. To secure him such notice registered owner, is deceased, and the present was the object of the statutes involved, and owner of the lot of ground against which this we should not go back to the old evil unless claim is filed is the estate of Louisa C. Robe. under constraint by want of alternative. In son, deceased, Samuel L. Robeson, adminisSimons v. Kern, already cited, it is said: trator, and its name is therefore suggested "Prior legislation as to the mode of service on the record as defendant.” On the same on registered owners so far as it is incon day the city filed an affidavit of service of sistent with the supplement of 1867 was in the notice required by statute preliminary effect repealed thereby, and, where it appears to the issue of a scire facias, in which the of record that the writ was not served 'as in affiant deposes that Louisa C. Robeson is the the case of a summons,' there is clearly a owner or reputed owner and has a known want of authority either to issue or execute residence in the city of Philadelphia, and the writ.” And in Philadelphia v. Cooper, that affiant had served the notice upon the 212 Pa. 306, 61 Atl. 926, it was held that a said owner by handing it to Silas Jones. scire facias on municipal claim not served on There is thus a direct contradiction between the registered owner, and no affidavit filed these two papers filed on the same day by that he was a nonresident or could not be the city as plaintiff. In the affidavit no infound, was so fatally defective that it
formation is given as to who Silas Jones was, would not support an alias legally served, nor why he should be served with notice but issued after the lien of the claim had ex for the registered owner whom the affidavit pired. Our Brother ELKIN said: “The lien avers to be living. On the other hand, servof the mechanic or municipal claim being by ice of the notice itself, of which a copy was statute, its validity, duration, and extent are filed, was accepted by Silas Jones as "attorwholly dependent upon compliance with the ney for Samuel L. Robeson, administrator of statutory provisions.
If there is the estate of Louisa C. Robeson, deceased." personal service on the registered owner, it When we come to the scire facias the matter must be in the same manner as a summons, as is not improved. It was issued on the claim provided in the act of March 29, 1867 (P. L. filed as already noted against Louisa C. 600). If personal service on the registered Robeson, owner or reputed owner, and Louowner is not made, then an affidavit must be isa E. Robeson, registered owner; recited the filed suggesting that the registered owner is a suggestion of the administrator as the presnonresident or cannot be found, to be follow ent owner; and commanded the sheriff to ed by posting and publication, as provided by “make known to the said Louisa C. Robeson, the act of June 10, 1881 (P. L. 91).” These owner, and Louisa E. Robeson, Reg. Own., extracts are but recent expressions of the and the estate of Louisa E. Robeson, dec'd, uniform current of decision that in matters Samuel L. Robeson, Adm., and to all such depending on statutory authority for their
persons as may hold or occupy the said buildentire validity we must follow the statute ing and premises, that they be and appear be strictly, and the further principle that reme fore the judges of our court,” etc. Service dial statutes should be applied so as to make of this writ was accepted by Silas Jones the remedy coextensive with the evil, if it can "attorney for defendants." Notwithstanding be done by reasonable construction in fur the affidavit of service of the preliminary notherance of its object. The act of 1881, tice on Louisa C. Robeson, the registered though making no express provision for the owner, it is plain upon the whole record that
she was dead, and there could be no ac FELL, J. The plaintiff, a boy 13 years and ceptance of service for her. There could be 6 months old, was injured under these cir. none for her "estate," as there is no such cumstances. With a companion of his own legal entity. It is a convenient phrase some age, he was walking west on the south side of times to identify the subject of litigation Columbia avenue. When he reached the east in the orphans' court, and in proceedings in side of Seventeenth street, a car was standrem it may be treated as harmless superfluity ing at the crossing. He waited on the side(as in Reece v. Haymaker, 164 Pa. 575, 30 Atl. walk until it started south, and then walked 404), but as a designation of a party to be across Seventeenth street to the west side of served with a writ it is unknown to the law. the car track, where he was struck by the The third defendant was the administrator side step of the defendant's wagon. The who prima facie had no concern with the wagon was a milk wagon with side doors real estate, and whose exceptional right to and steps between the front and hind wheels, represent it, if any he had, was not set out. which projected slightly beyond the line of The acceptance of service of the writ was the wheels. It was moving north on the not by any one or for any one who answered west side of the street, between the car track to the statutory requirements, or could bind and the west curb. The speed of the horse the rem. There was therefore an entire fail was described by one of the plaintiff's witure of such service as would sustain the nesses in his examination in chief as a "fast judgment, and the sale, as in Simons v. Kern, trot," and on his cross-examination as an was void for want of jurisdiction patent on "ordinary trot,” and by another of his witthe record of which the purchaser was bound nesses as “just a trot.” The wagon was to take notice.
stopped within six or eight feet of the point The other point raised by the appellant, as of collision. The car was 25 feet from the to the presumption of a trust in Jones from
crossing when the boy passed behind it, and his having purchased while apparently acting there was nothing on the street to obstruct as attorney for the owners, need not be con his view or that of the driver. sidered. The plaintiff's title not being mar It is contended that there was negligence ketable, the appellant was not bound to ac
on the part of the driver in approaching a cept it.
crossing at undue speed and in driving on Judgment reversed, and procedendo award the left side of the street. There would be ede
force in these contentions if the plaintiff had
been on the crossing in front of the horse, (217 Pa. 156)
but, as he was in a position of safety when HENSON V. ARTHUR.
the horse and front wheels of the wagon (Supreme Court of Pennsylvania. Feb. 25, 1907.)
passed in front of him, there is none. With a
clear street and an unobstructed view, it can1. MUNICIPAL CORPORATIONS STREETS AS HIGHWAYS–NEGLIGENCE,
not be said to be negligent to approach a The driver of wagon is not negligent in crossing at an ordinary trot with a horse approaching the crossing of a side street at an under such control that he can be stopped ordinary trot, where the horse is under such control that he can be stopped in about six feet.
within six or eight feet. The driver was on [Ed. Note. For cases in point, see Cent. Dig.
the left side of the street because that was vol. 36, Municipal Corporations, f 1515.] the only side open to him. He had stopped 2. SAME-NONSUIT.
on that side near the middle of the block In an action against the driver of a wagon to deliver milk, a wagon was standing farther for injuries at a crossing, judgment of nonsuit
north on the opposite side between the curb is properly entered where the evidence shows conclusively that plaintiff walked against the
and the car track, and, until the car was side of defendant's wagon while the driver was met and passed, he had no opportunity to looking at the travel in front of him on a cross cross over. He was lawfully where he was, street.
and the "rule of the road” had no applicaAppeal from Court of Common Pleas, Phil.
tion except as between him and other drivers adelphia County.
whose rights to that side of the street were Action by Wilmer Y. Henson and Le Roi
superior to his. With them he took the Henson, by his next friend, against Joseph chance of collision. Foote v. American ProdW. Arthur, trading as the Arthur Milk Com
uct Co., 195 Pa. 190, 45 Atl. 934, 49 L. R. A. pany. From an order refusing to take off
764, 78 Am. St. Rep. 806. a nonsuit, plaintiff appeals. Affirmed. Argued before MITCHELL, C. J., and
testimony is that the plaintiff walked against FELL, BROWN, MESTREZAT, POTTER,
the side of the defendant's wagon when the and STEWART, JJ.
driver's attention was directed to the travel Meredith Hanna, for appellant. George L in front him on the cross-street. Crawford, for appellee.
The judgment of nonsuit is affirmed.
The only conclusion possible from the
(105 Md. 388)
W. L. C. Willett all her estate and property PRESTON et al. v. WILLETT et al. "and all over wbich I have any power of ap(Court of Appeals of Maryland. April 2, 1907.) pointment." That provision in her will pre
sents the question to be determined by us, WILLS-CONSTRUCTION-LIFE ESTATE WITH POWER OF DISPOSITION.
namely, whether she could by will dispose of Testator, after making certain devises and her share in the residue of her father's estate; bequests, directed that the residue of his estate, she not having any issue. As that depends after the death of his wife, should be held in
upon the will of her father, we will quote such trust for his six children, one equal sixth part of the annual income to be paid to each of his
of its provisions as reflect upon the question. children during life, and from and after the The testator left all of his property to his death of his children he devised the share of wife for life, then gave his son certain perhis estate of the one so dying to such of that child's issue as he might by last will appoint,
sonal property and a house and lot in Baltiwhich appointment he empowered his children more and gave certain properties to his five to make whether married or single; that in daughters, as tenants in common. He left case of the death of any of his children intes
all the rest and residue of his estate, after tate, but leaving issue living at his death, the share of his estate of the one so dying should
the death of his wife, to trustees: “In trust, be equally divided among such issue ; that in nevertheless, share and share alike for my case of the death of any of his children intes six children aforesaid, upon the following tate and without leaving issue at his death the share of the one so dying should be held in trust
trusts and conditions, to wit: (1) In trust to to be equally divided among his surviving
pay one equal sixth part of the clear annual children and the issue of any deceased child income thereof to each of my children during or children. Held, that a child of testator, life, and from and after the death of my said though not leaving issue, could by will dispose of her share of testator's estate.
children, I give, devise, and bequeath the
share of my estate of the one so dying abAppeal from Circuit Court of Baltimore solutely and discharged from the trust here City; Alfred S. Niles, Judge.
by created to such of his or her issue as he Action between Achsab R. Preston and oth
or she may by last will appoint and for such ers and Mary W. L. C. Willett and others. estates and with such limitation as may be From the decree, Achsah R. Preston and
in said will set forth, which appointment I others appeal. Affirmed.
hereby empower my children to make wheth. Argued before BRISCOE, BOYD, PEARCE,
er married or single, (2) And in case of the SCHMUCKER, and BURKE, JJ.
death of any of my said children intestate, Alexander Preston and Frank Gosnell, for but leaving issue living at his or her death ; Preston and family. John E. Semmes, I give, devise and bequeath the share of my Whiteley & Whiteley, and Charles W. Field, estate of the one so dying to be equally difor Willett. Charles McH. Howard, for the vided, among such issue per stirpes and not Safe Deposit & Trust Co., trustee.
per capita, absolutely and discharged from
the trust hereby created. (3) And in case of BOYD, J. The Safe Deposit & Trust Com
the death of any of my said children intespany of Baltimore, which was appointed sub
tate and without leaving issue at his or her stituted trustee to administer the trusts cre
death, then the share of the one so dying ated by the will of the late James Carroll, shall be held in trust as aforesaid to be instituted this proceeding to obtain a con
equally divided among my surviving children struction to certain provisions of that will.
and the issue of any deceased child or chilMr. Carroll had a wife, five daughters, and
dren per stirpes, my children's portions there one son when his will was made, in 1876, all
of to be held upon the same trusts as are of whom survived him, but his widow died herein provided for their original shares." the year after he did. Mrs. Preston, who is We have, for convenience of reference, insertstill living, was the only child of Mr. Carroll ed numbers before those clauses, although who was married when the will was made, they are not in the original. It is clear that and she then had several children. Prior to those clauses made provision for at least the death of Mr. Carroll, which occurred in three classes: (1) That a child of the tes1887, his daughter Mary L. married James tator who had issue could will his or her one Holmes Whitely, and after his death Sophia sixth share to any one or more of such issue; G. married John 0. Turnbull and Catharine (2) that the share of a child dying intestate, L. married John C. Willett. His son Harry
but leaving issue, should go to such issue; died intestate and unmarried in 1888, and his and (3) that if a child died intestate, without daughter Sallie W. is still living and unmar leaving issue, the share of such child should ried. None of his children have had issue be equally divided among the testator's surexcept Mrs. Preston, who has several chil viving children and the issue of deceased dren and grandchildren, and Mrs. Willett, children per stirpes. It is equally clear that who has one daughter, Mary W.L. C. Willett. the testator did not in terms make any disMrs. Turnbull died in 1906, without issue, position of the share of a child who died tesbut leaving a last will and testament by which, tate and without leaving issue, unless some after providing for her debts and funeral char such construction be given the will as is conges and bequeathing a miniature of her de tended for by the appellees. It was suggestceased husband, she left to her niece, Mary ed by the appellants that the expression used