BOROUGH OF SHAMOKIN V. COOK

ingly sell, or offer for sale any marketable commodity whatsoever to any store keeper, green grocer, or any person or persons to re-sell, etc."

Seven exceptions were filed upon the part of the defendants, the same argued before us.

The first exception is, "the offense, if any against the 10th section of the borough ordinance of February 6th, 1897, was a separate and distinct offense by each of said defendants and not a joint offense, and it was, therefore, reversible error for the justice to sustain this action."

The defendants, David Cook and A. Brown, were sued jointly for the recovery of a penalty for the violation of Section 10 of the borough ordinance. The transcript charges that David Cook sold commodities at wholesale for the purpose of re-sale and that A. Brown bought from David Cook commodities for the purpose of re-sale; both participated at the same time in the violation of the ordinance. It, therefore, appearing that both are connected in the act complained of we hold that the exception above stated is without merit.

"If two or more defendants are jointly guilty, under an ordinance, they may be jointly sued for the penalty. So likewise may several offenses be joined in one proceeding if the aggregate amount sued for does not exceed one hundred ($100.00) dollars." Williamsport v. Williamsport Water Co., 7th District Reports 206.

The second exception complains "that the information or complaint does not charge a violation of said ordinance by David Cook, said information charging only that said David Cook sold radishes to A. Brown at wholesale, whereas said ordinance does not prohibit the selling at wholesale but forbids only selling knowingly to persons at resale."

An examination of the information in this case discloses that A. Brown is charged with no offense whatever but that David Cook is chaged with the selling of radishes to A. Brown at wholesale.

Section 10 of the ordinance referred to, does not forbid the selling at wholesale but forbids "any person or persons attending such market to knowingly sell, or offer for sale any marketable commodity whatsoever to any store keeper, green grocer or any person or persons to re-sell."

BOROUGH OF SHAMOKIN V. COOK

It is contended on the part of the plaintiff that the appearance of the defendants at the time of the hearing, without objection, cures any defect there may be in the summons or insufficiency in the complaint. That is true, but under the information and summons issued in this case David Cook was summoned to appear and answer the complaint or charge of selling at wholesale, which charge is not a violation of Section 10 of the ordinance.

We therefore hold, that the judgment entered in this case against the defendants is erroneous, no amendment of the information having been asked for or at any time made, and without such the judgment cannot stand for the reason that the offense charged in the information is not a violation of Section 10 of the borough ordinance. In addition, that in entering the judgment the justice of the peace failed to state the particular act of which the defendants were convicted, whether it be selling at wholesale, which is not a violation of the ordinance, or whether it be for the purpose of re-sale which is a violation. The judgment entered is for a general violation of the ordinance and does not state that it is entered for the violation of the specific Section 10.

Our discussion of the second exception also covers the third exception.

The fourth exception complains that "there is no proof that A. Brown bought radishes or any articles of marketing for the purpose of re-selling the same, or that he did re-sell the same. There is therefore no evidence to sustain the judgment against A. Brown, and it should be reversed." It has been held in numerous cases that nothing less than the essential proof or particular substance of the whole testimony should be set forth and returned to define and prove the offense with which the defendants are charged. In this we find the record of the justice deficient.

The only evidence set forth in the record which we deem material in this case, is that of William Jackman, Police Officer, and J. E. Wheary, High Constable. William Jackman testified that he was in the market on the morning of July 14th, 1914; that he saw David Cook's wagon back up to the market curb between the hours of 5:30 and 7:30 in the morning; that Cook carried from his wagon to A. Brown's wagon an arm full of

BOROUGH OF SHAMOKIN V. COOK

from 12 to 25 bunches of radishes; that Brown is a store keeper; that Cook told him that morning and since that he sold all of his load that morning at wholesale, excepting 5 cents worth which he retailed.

J. E. Wheary testified that he was market clerk on July 14th, 1914. David Cook backed up to the curb and paid him 10 cents for the privilege of selling in said market. A Brown is a store keeper and on the morning of the 14th during market hours he saw Cook carry radishes to A. Brown's wagon; that Cook told him on the same morning and since that he sold all of his load on the morning of July 14th at wholesalae except 5 cents worth which he retailed. Giving the most liberal construction to this testimony we can conclude but this, that David Cook sold at wholesale and that A. Brown purchased in wholesale quantities, either of which is not prohibited by the ordin

ances.

Second. There is absolutely no testimony returned by the justice showing any knowledge on the part of David Cook that A. Brown was a store keeper, green grocer, or that A. Brown purchased the said goods for purposes of re-sale, or that David. Cook sold the same knowingly to A. Brown for such purpose, or that any attempt was made or that there was any intention on the part of A. Brown to re-sell the goods. In the absence of such testimony the court would not submit this question to a jury. We therefore hold, that the record as returned by the justice of the peace does not disclose sufficient testimony to warrant the justice in entering judgment in favor of the borough and against the defendants.

The discussion as to exception No. 4, covers also No. 5. We can only add, as was stated before, that the information in this case charges no violation whatever of Section 10, or any other section of the ordinance of the Borough of Shamokin as against A. Brown.

The sixth exception complains that Section 10 of said ordinance offends against the constitution and laws of this Commonwealth, in that it is a regulation in restraint of trade and not a police regulation.

In Meadville v. Miller, 14th District Reports, P. 27, Thomas, P. J., in his discussion, says: "A number of reasons were urged as to why we should hold this ordinance as invalid. It is urged

BOROUGH OF SHAMOKIN V. COOK

that it is in restraint of trade, as it gives one person privileges not allowed to others and discriminates therefore against dealers. It gives no one a privilege over another. A dealer has the same right to purchase for his own use as any one else. But neither he nor any one else has the right to purchase for the purpose of selling again.

"To make this a trade regulation it must be directed against certain persons and not against a business. It is not so directed, but operates upon all persons engaged in the business against which it is directed. It is, therefore, a police regulation and not a trade regulation; Comm. v. Harmel, 166 Pa. 89, and Sayre Borough v. Phillips, 148 Pa. 482."

It is said this is not a police regulation enforceable by ordinance, but we think this is not the law of this Commonwealth.

V.

As was said by Black, C. J., in the case of Wartman .Phila., 33 Pa. 202: "The necessity of a public market, where the producers and consumers of fresh provisions can be brought together at stated times for the purchase and sale of those commodities, is very apparent. There is nothing which more imperatively requires the constant supervision of some authority which can regulate and control it..It is, therefore, the common law of Pennsylvania, that every municipal corporation which has power to make by-laws and establish ordinances to promote the general welfare, and preserve the peace of a town or city, may fix the time or places of holding public market for the sale of food, and make such other regulations concerning them as may conduce to the public interest."

The city has a right to regulate the sales at a market-the sale of some articles prohibit and of others permit; to provide for special inspection of articles offered for sale; to regulate the days and hours for keeping open the market to the public, and adopt such regulations as are reasonable and necessary for the preservation of the public health and conducive to the public interests; Strickland v. Penna. R. R. Co., 154 Pa. 348; 19 Am. & Eng. Ency. of Law (2nd ed.), 1147; Natal v. Louisiana, 139 U. S. 621.

It seems clear to us that the ordinance in question is within the power of the municipal authority to enact when we but consider the character and purpose of a market.

BOROUGH OF SHAMOKIN V. COOK

We are clearly of the opinion that the ordinance in question is valid and binding, but owing to the defects in the record to which attention is called in our discussion of the exceptions. and the absence of sufficient evidence, as shown by the record to warrant the entry of judgment, exceptions Numbers 2, 3, 4 and 5 are sustained and the judgment of the justice is reversed.

In the Orphans' Court of Northumberland County

TRESSLER'S ESTATE

Equity-Parol contract-Specific performance--Sale of real estate.

Where a decedent, in his lifetime, made a parol agreement for the sale of real estate, and where it was shown by several witnesses that he made an actual sale of the premises and on several occasions, both in and out of the presence of the vendee, so stated, and where a receipt was produced signed by the decedent and marked in full for house and lot," and where the full consideration was paid and possess on of the premises taken by the vendee, the Orphans' Court, on a petition for specific performance of contract, ordered and directed the executor of the last will and testament of the decedent to execute a deed in fee simple for the said real estate.

To enforce such a pa ol agreement it must be shown that the contracting parties were brought face to face and that the witnesses must have heard the parties repeat their agreement in each other's presence.

When there is uncertainty as to what lands are included in the description, or there is a doubt as to the boundaries, or location or 1 mits of land sold, evidence aliunde may be resorted to for the purpose of aiding a jury to determine what land was intended to be included in the grant.

Petition for specific performance of contract. Orphans' Court of Northumberland County. No. 22 May Term, 1915. In re estate of John P. Tressler, deceased.

F. A. Witmer and J. P. Carpenter for the Petitioner.

George B. Reimensnyder and J. W. Sanders for the Respondents.

CUMMINGS, J., February 25, 1916.-The contention arises upon the petition in this court, having the effect of a bill in equity to compel the specific performance by the Executor of J. P. Tressler, deceased, of an alleged contract or agreement on the part of said decedent to sell certain real estate in the Borough of Herndon to the petitioner, Elias Bohner.

It is admitted that prior to December 4, 1914, J. P. Tressler was siezed in fee of a certain lot or piece of ground with the appurtenances situated in the Borough of Herndon, County of