text:
    Murray, Appellant, v. McDonald.

      Married woman — Husband and wife — Principal and surety— Judgment — Opening judgment — Public policy — Illegal contract— Estoppel.

    A judgment entered against a married woman on a judgment note which she signed as surety for her husband, will be opened because the signing of such a note by a wife, not only contravenes public policy but also offends against a positive statute. The wife is not estopped from asserting her right to have the judgment opened because she falsely certified on the face of the note that it was given for her own personal use and not as a guaranty or surety for any other person; nor is she estopped by the fact that she took no steps to have the judgment opened until four years after its entry. '
    Argued Feb. 20, 1912.
    Appeal, No. 25, Jan. T., 1912, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1907, No. 642, dismissing exceptions to report of referee in case of M. J. Murray v. Martha L. McDonald.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of H. R. VanDeusen, Esq., referee.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to report of referee.

      M. J. Martin, with him M. J. Murray, Jr., for appellant.
    A motion to open a judgment is an appeal to the equitable power of the court to let the defendant into a defense: Ilyus v. Buch, 34 Pa. Super. Ct. 43; Shannon v. Castner, 21 Pa. Super. Ct. 294; Augustine v. Wolf, 215 Pa. 558; Joy v. Amantea, 43 Pa. Super. Ct. 529; Kaier Co. v. O’Brien, 202 Pa. 153; McAnulty v. Nat. Life Assn., 6 Lack. L. N. 128; Fuller v. Law, 207 Pa. 101; McCormick v. Bottorf, 155 Pa. 331; Dorris v. Coal Co., 215 Pa. 638; Boyertown Nat. Bank v. Hartman, 147 Pa. 558.
    Defendant can not contradict the note by averring her own misrepresentation: Appleby v. Barrett, 28 Pa. Super. Ct. 349; Atkins v. Grist, 44 Pa. Super. Ct. 310.
    The court will not grant equitable relief to one who alleges his own turpitude as the ground for such relief: Reynolds v. Boland, 202 Pa. 642; Kunkle’s App., 107 Pa. 368; Winton v. Freeman, 102 Pa. 366; Gill v. Henry, 95 Pa. 388.
    She was estopped by her conduct: Orr v. White, 106 Ind. 341 (6 N. E. Repr. 909); Rogers v. Life Ins. Co., 111 Ind. 343 (12 N. E. Repr. 495); Lane v. Schlemmer, 114 Ind. 296 (15 N. E. Repr. 454); Bodine v. Killeen, 53 N. Y. 93; Hart v. Church, 126 Cal. 471 (58 Pac. Repr. 910; 59 Pac. Repr. 296); Patterson v. Lawrence, 90 Ill. 174.

      A. A. Yosburg, with him A. D. Dean, for appellee.
    A note given by a married woman to repay money loaned to her husband will not support a claim against her or her estate: Real Estate Investment Co. v. Roop, 132 Pa. 496; Melroy v. Melroy, 6 Pa. C. C. R. 419; Patrick v. Smith, 165 Pa. 526; Weigle v. Mercer, 1 Pa. Super. Ct. 490.
    A judgment note given by a married woman to secure the debt of her husband or of another is void: Jaquett v. Allabaugh, 16 Pa. Super. Ct. 557; Harris v. Reinhard, 165 Pa. 36.
    There is nothing in the case to take it out on the rule that when a married woman, though apparently a principal is in reality a surety she cannot be held liable: Wiltbank v. Tobler, 181 Pa. 103; Henry v. Bigley, 5 Pa. Super. Ct. 503; Stahr v. Brewer, 190 Pa. 521; First Nat’l. Bank v. Short, 15 Pa. Super. Ct. 64; Harper v. O’Neil, 194 Pa. 141; Harley v. Leonard, 1 Pa. Super. Ct. 431; Reynolds v. Creveling, 177 Pa. 267; Philadelphia Co. v. Gas Co., 180 Pa. 235; McCihn v. Benner, 180 Pa. 396; Hotchkiss v. Roehn, 181 Pa. 65.
    April 8, 1912:
   Opinion by

Mr. Justice Stewart,

The judgment which is the subject of the present controversy was entered by confession, under warrant of attorney contained in a single bill, of which M. E. McDonald and Martha L. McDonald were the makers. The makers were husband and wife. The bill concluded as follows: “And I, Martha L. McDonald, do hereby certify that this note is given for my personal use and benefit and for the improvement of my separate estate and that I do not make it as accommodation endorser, maker, guarantor, or surety for any other person.” On the face of the bill, though not included in the bill itself, this appears: “Collateral for note in First National Bank, Scranton, Pa., or any renewal thereof.” The note here referred to was one given by the husband, M. E. McDonald, to the appellant, and by the latter endorsed and discounted at the Scranton National Bank. The bill and note were each for $5,000, and were executed contemporaneously 19 September, 1905. The note represented the individual debt of the husband; he received the proceeds of the discount and applied them to his own purposes; no portion of the money was expended for the personal benefit of the wife or in the improvement of her separate estate; there were no business transactions or relations between the wife and the appellant; the single bill was signed by the wife at the instance and request of the husband, for his own convenience and uses in connection with the discounting of his note. These are the facts found by the referee, and concurred in by the chancellor. It is only necessary to say that the proof in support of them was ample and conclusive. On the application of the wife, alleging these facts substantially, the judgment was opened. The final result was judgment in her favor. We pass without comment the assignment of error which complains of the finding that Martha L. McDonald signed the judgment as surety for her husband. It is too clearly established to admit of dispute that this was her only relation to the transaction, however much such finding may reflect upon her good faith and candor, in view of what she certified to in the bill over her own signature, a question about which there may well be difference of opinion in the light of the explanation she gives. But no conclusion, however adverse to the wife with respect to this feature of the case, can influence -a determination of the controversy. The judgment, it is true, was opened on her application, but the court was not moved to this in order that she might be relieved from an obligation which she had voluntarily, though, as she says, negligently, assumed, certainly to the great damage of the appellant, who loaned his credit to her husband on the faith of her written certificate. The judgment was not opened to permit her to show a claim to equitable relief, for she had asserted none, and had none. The judgment was correct in amount; the terms of payment were in accordance with the terms of the agreement; nothing had been paid on it, and it stood clear of all suggestion of fraud. It was opened solely because the transaction as exhibited in her application was one not only contravening public policy, but one which offended against a positive statute. The rule which permits a court to open a judgment under such circumstances has repeatedly been asserted, and the principle on which it rests has been vindicated in numerous cases. In Bredin’s Appeal, 92 Pa. 241, the court below refused to open a judgment by confession to permit it to be shown that the note containing the warrant had been given for the suspension of a prosecution for forgery. In the opinion by this court, delivered by Mr. Justice Trtjnkey, reversing the order of the lower court, it is said, referring to the duty of the court in such case, “It comes within the rule, that where the welfare of society and the vindication of the law are the chief objects, the defendant may give in evidence the illegality of the contract as a bar to a suit to enforce it; and this to prevent the evil which would be produced by enforcing the contract or allowing it to stand. Shall these objects be thwarted, and the evil follow which the law designs to prevent, because of a judgment confessed by virtue of a warrant which is but a part of the criminal transaction?” While there is nothing criminal, of course, in a married woman becoming surety for her husband, it yet offends quite as much against positive law as it would were a penalty attached. The principle we have cited extends to any act which the law forbids: “It would seem to be settled in Pennsylvania that chancery will grant relief by injunction to stay proceedings, where a judgment is procured by fraud or given upon a consideration which is illegal, or upon a transaction contrary to public policy, or in violation of the law.” Given’s Appeal, 121 Pa. 260. Unless the principle here asserted is to prevail in cases like the present, the statutory prohibition against a married woman becoming surety for her husband would be of no effect, and the policy of the law in this regard liable to circumvention by flimsiest device. All that a court sitting in equity may do in such case is fully within the power of the court having jurisdiction over its own judgments. The court in the present instance having properly opened the judgment, it follows that it was within its power to enter the final judgment in the case which here appears, and that such judgment was the only correct one. That appellee took no steps to have the judgment opened for four years after its entry, makes nothing to the contrary. “The judgment having been entered by confession upon warrant of attorney, the question of the illegality of the confession was not considered at the entry of the judgment; the defendant cannot be charged with laches in failing to set up her defense, for she had no opportunity.” Given’s Appeal, supra. In what we have said as to the real ground on which the opening of the judgment rests, may be found a sufficient answer to the contention that the appellee was estopped by her own conduct and that it was not competent for her to contradict the terms mentioned in the note.

The assignments of error are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Fell,

license: Public Domain

text:
    Roup’s Estate.

      Wills — Probate — Refusal of issue devisavit vel non — Testamentary capacity — Undue influence — Evidence.
    1. An issue devisavit vel non should not be granted when, on a review of all the testimony a judge will feel constrained by the manifest weight of the evidence to set aside a .verdict against the will.
    2. On an appeal from an order refusing an issue devisavit vel non, it appeared that the proponents were the widow of the testator, who had been his second wife, and her daughters by a former marriage. .The contestant was a son of the testator by a former marriage. Testator died at eighty-two years of age leaving an estate of $8,000 half of which was represented by a farm and half by personal property. Thirty-one years before testator’s death, contestant left his father’s house, to live in the west, became prosperous and re-visited his parents’ home only three times thereafter. On the third visit east he merely called on his father, and neither showed any interest in the other. The step-daughters of testator made their home with him, assisted in the household work and helped the testator in barn and field work usually done by men. The will was written by a justice of the peace six years before testator’s death. It was read to him, and executed by him not in the presence of his wife, and there was no evidence whatever that she or any other person made any suggestion to him as to the disposition of his property. A number of witnesses, including his physician and neighbors testified as to his business capacity showing that he managed his farm, bought the supplies for it and bis family, and attended to tbe investment of bis meney. On two occasions, the first nine years before the will was executed, and the second, six years after it was executed, the testator was in a moody condition, and his mind somewhat impaired, but there was nothing to show that he was not in the full possession of his faculties at the time the will was made. Held, that an issue devisavit vel non was properly refused.
    Argued Feb. 26, 1912.
    April 8, 1912:
    Appeal, No. 291, Jan. T., 1911, by defendant from decree of O. O. Montour Co., Oct. T., 1910, No. 6, refusing an issue devisavit vel non In re Estate of Lafayette F. Roup, deceased.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Register of Wills. Before Evans, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree refusing an issue devisavit vel non.

      H. M. Hinckley, with him Wm. Kase West, for appellant.
    An issue should have been allowed: De Haven’s App., 75 Pa. 337; Harrison’s App., 100 Pa. 458; Knauss’ App., 114 Pa. 10; Herster v. Herster, 116 Pa. 612; Miller’s Estate, 179 Pa. 645; McGovran’s Estate, 185 Pa. 203; Taylor v. Trich, 165 Pa. 586; Hemingway’s Estate, 195 Pa. 291; Bennett’s Est., 201 Pa. 485; Safe Dep. & Trust Co. v. Lange, 207 Pa. 527; Thomas v. Carter, 170 Pa. 272.

      George B. Reimensnyder, with him Grant Herring, for appellee,
    cited: Vowinckel v. Patterson, 114 Pa. 21; Graham’s Estate, 225 Pa. 314; McNitt’s Estate, 229 Pa. 71.
   Opinion by

Mr. Chief Justice Fell,

This appeal is from an order refusing an issue devisavit vel non asked for on the grounds of undue influence and of the want of testamentary capacity. The contestant of the will was the son of the testator by his first marriage and his only child. The proponents were the widow of the testator, who had been his second wife and her daughters by a former marriage. An issue devisavit vel non should not be granted when, on a review of all the testimony, a judge would feel constrained by the manifest weight of the evidence to set aside a verdict against the will. Knauss’ Appeal, 114 Pa. 10; Graham’s Estate, 225 Pa. 314. This test was applied by the learned judge of the Orphans’ Court and his conclusion should not be set aside unless clearly shown to be erroneous. This has not been done.

No useful purpose would be served by a general review of the voluminous testimony. The main facts developed may be briefly stated. The testator died in 1909, at eighty-two years of age, possessed of an estate of about $8,000, the accumulation of a life of industry and thrift. Half of the estate was represented by the farm on which he had lived nearly fifty years and the balance was in personal property. In 1878, his son, the contestant, who was then twenty-three years old, left his father’s home in Pennsylvania, and went to Missouri where he has since lived and prospered in business. During the thirty-one years following they saw each other but on three occasions, the first was in 1883, when the contestant visited his parents’ home, the second in 1893, when his parents visited him in Missouri and the third in 1903, when the contestant called at his father’s house, while on a visit to friends in the locality. This call appears to have been a mere incident of his visit and neither father nor son manifested any affection or regard for or interest in the other. They were kinsmen in blood only. The testator’s first wife died in 1893 and five years later, in 1898, he married a widow, two of whose daughters at times made their home with him and assisted their mother in household work and assisted the testator in barn and field work usually done by men. The beneficiaries under the will are the testator’s widow and these daughters.

The will was executed six years before the death of the testator. He went with his wife to the home of a justice of the peace, to whom he made known the disposition he desired to make of Ms property. The will was then written, read to the testator, who expressed his satisfaction with it, and signed by him. His wife was not in the room when he gave directions for the writing of his will, nor while it was being written and there was not the slightest evidence that she or any other person, at this or at any time, made any suggestion to the testator as to the disposition of his property or that he was under any constraint in relation thereto. The charge of undue influence rests on the bare suspicion that influence was exercised because there was opportunity for its exercise. His testamentary capacity was established by the testimony of his physician, his neighbors and by business men with whom he dealt. He managed his farm, sold his farm products, bought his clothing, furniture, machinery and supplies needed for the family and farm, and attended to the investment of his money. In these matters he usually consulted his wife who accompanied him when he went from home on business of any kind.

There was testimony as to the want of testamentary capacity which received the careful consideration of the judge who heard and saw the witnesses and was in the best position to judge of their means of knowledge and their bias and it has received ours. The testator’s mind was to some extent impaired for a short time following the death of his wife, when he lived alone on his farm and brooded over his sorrows, and again for a few months immediately preceding his death when he was suffering from physical ailments. The first occasion was nine years before the will was executed and the second, six years after it was made. We find no testimony to indicate that at or near the time of the execution of his will, he was not in the full possession of his faculties. As stated by the learned judge of the Orphans’ Court, “In brief, he was what might be termed a hard-working, close-fisted farmer, who could neither read nor write and usually had but little to say and knew what he wanted and needed.” Taking into view all the testimony, we find nothing that would sustain a verdict against the proponents of the will.

The order of the court is affirmed at the cost of the appellant.


author: Per Curiam,

text:
    Commonwealth, Appellant, v. Stone.

      Criminal law — Embezzlement — Banks and banking — Act of June 12, 1878, P. L. 196.

    An indictment against private hankers under the Act of June 12, 1878, P. L. 196, cannot be sustained, where the indictment shows on its face that the money which the prosecutrix claims was embezzled, had been deposited to her credit in the banking institution of which defendants were members. Moneys deposited in a bank cease to be the property of the depositor, and become the property of the bank.
    Argued March 11, 1912.
    Appeal, No. 84, Oct. T., 1912, by plaintiff from judgment of Superior Ct., April T., 1912, No. 20, affirming judgment of Q. S. Beaver Co., quashing indictment in case of Commonwealth v. Dan. H. Stone and Charles H. Stone.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Appeal from judgment of the Superior Court. See 48 Pa. Super. Ct. 260.

      Error assigned was the judgment of the Superior Court,

      April 8, 1912:

      Edwin S. Weyand, with him J oseph Knox Stone, and J. Frank Reed, for appellant.

      J. Rankin Martin, J. Sharp Wilson, Joseph L. Holmes and William A. MeOonnel, for appellees.
   Per Curiam,

The indictment quashed by the court below was framed under the first section of the Act of June 12, 1878, P. L. 196, which is as follows: “If any person, being an officer, director, superintendent, manager, receiver, employe, agent, attorney, broker, or member of any bank or other body corporate, or public company, municipal or quasi municipal corporation, shall fraudulently take, convert, or apply to his own use, or the use of any other person, any of the money or other property * of such bank, body corporate or company, municipal or quasi municipal corporation, or belonging to any person or persons, corporation or association, and defposited therein, or in possession thereof, he shall be [guilty of a misdemeanor.” The indictment shows on its face that the money which the prosecutrix alleges was embezzled by the defendants did not belong_±o_her, . for the averment is that the same had., been deposited to ! her credit in the banking .institution of 'wEicK the defendants werelnembers. When the money was so deposited it ceased to be the property of the pfosecutrix and Jiecame the. money of the bank: Bank of Northern Liberties v. Jones, 42 Pa. 536; Commercial National Bank v. Henninger, 105 Pa. 496. The indictment, in effect, charges the defendants with embezzling their own moneyT^md it was, therefore, properry quashed.

'The appeal from the action of the Superior Court, sustaining the court below, is dismissed.


text:
    Drislane v. Lehigh Valley Railroad Company, Appellant.

      Appeals — Assignment of error — Refusal of new trial.

    Where an appellant assigns as the only error the refusal of the court below to grant a new trial, he concedes that the case was for the jury, and with no assignment complaining of any ruling of the trial judge, or of his charge to the jury, the appellate court can do nothing but dismiss the appeal.
    Argued March 11, 1912.
    April 8, 1912:
    Appeal, No. 343, Jan. T., 1911, by defendant, from judgment of C. P. Bradford Co., May T., 1910, No. 217, on verdict for plaintiff in case of John Drislane v. Lehigh Valley Railroad Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Panning, P. J.
    Verdict and judgment for plaintiff for $2,716.66. Defendant appealed.

      Error assigned was as follows: “The court erred in refusing to grant a new trial.”

      R. W. Barrett, with him E. E. Boles, for appellant.

      8. E. Smith, David E. Kaufman and Chas. M. Culver, for appellee.
   Per Curiam,

The only assignment of error on this appeal is that the court erred in refusing to grant a new trial. This concedes that the case was for the jury, and, with no assignment complaining of any ruling of the trial judge, or of his charge to the jury, we can do nothing but dismiss the appeal.

Judgment affirmed.


author: Mr. Justice Moschzisker,

text:
    Lyke v. Lehigh Valley Railroad Co., Appellant.

      Negligence — Railroads — Open switch — Maintenance of danger signal — Safe place to worlc — Evidence — Case for jury.

    1. In an action against a railroad company to recover damages for personal injuries sustained by the plaintiff while engaged in unloading a flat-car in defendant’s yard, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that in some way the switch from the main track had been left open so that cars ran through it and struck the flat-car where plaintiff was working; that a danger signal of the type known as a “target” had been maintained at the open switch, but had been removed eighteen months before the accident; that such a signal was usual at such a switch, and that-had the target been in place the engineer on the switching engine which ran the cars through the switch, would have seen it, and have avoided the accident.

      Evidence — Consonant’s statement — Declaration — Credibility of witness.

    2. A consonant statement is a prior declaration of a witness whose testimony has been attacked and whose credibility stands impeached, which, considering the impeachment, the court will allow to be proved by the person to whom the declaration was made in order to support the credibility of the witness, and which but for the existence of such an impeachment, would ordinarily be excluded as hearsay. To sustain the admission of such declarations, the impeachment must plainly appear, and must go to the credibility of the witness.
    3. In an accident case where the plaintiff’s testimony is attacked on cross-examination and otherwise by intimations, that his course of conduct concerning the accident was not an honest one, and that he had fabricated his claim in order to secure a verdict, and where his credibility is further impeached by proofs of alleged inconsistent and contradictory statements on a point vital to his case, and by evidence that he had said nothing of his injuries immediately after the accident when it would have been natural for him to speak, he may in rebuttal offer proof that his testimony at the trial was consistent with his declarations made a few minutes after the accident and years before the suit was brought.

      Evidence — Statement of fact — Conclusion of a witness.

    4. A trial judge cannot be convicted of terror in ruling out testimony of a witness which is a mere conclusion and not a statement of fact.

      Appeals — Assignments of error — Admission of testimony — Depositions.

    5. An assignment of error to the admission of certain depositions taken at a former trial, will not be considered where the depositions are not printed in the assignment. A mere statement that they were read to the jury, followed by a reference to the pages in the appendix where they could be found, is insufficient.
    Argued March 11, 1912.
    Appeal, No. 20, Jan. T., 1912, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1907, No. 235, on verdict for plaintiff in case of Prank B. Lyke v. Lehigh Valley Railroad Company.
    Before Brown, Mestrezat, Piotter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Panning, P. J.
    At the trial the counsel for the plaintiff made the following offer: “We offer in evidence the stenographer’s notes of testimony in the case of William Ackley against Lehigh Valley Railroad Company, on the 15th day of Pebruary, 1907, beginning at page 94; being the testimony of the plaintiff, a witness called in that case, as to where his position was at the time of the accident.
    Mr. Maxwell, counsel for defendant company: For what purpose do you offer this?
    Mr. Lilley: For the purpose of showing that his testimony in this case is not a fabrication of recent date. Said testimony being as follows:
    Q. Where were you when the accident occurred, and what were you doing? A. I was on the car. We had put one marker on the wagon and we had just started another marker to put on, when the accident occurred.
    Mr. Maxwell: Counsel for defendant objects to the offer for the following reason:
    It appears from the testimony, in the case, that this accident occurred on the 21st day of December, 1905, and that the witness testified, and that the notes of testimony offered were given the 15th day of Pebruary, 1907; therefore the notes of testimony offered are incompetent, not rebutting, and are in the nature of self-serving declarations or statements of the plaintiff.
    Defendant does not claim that the evidence given by the plaintiff in this case is of recent fabrication, "but does claim that the plaintiff, at the time he so testified, in the Ackley case, was placing himself in a position to bring a suit against the defendant company, and what he testified to in that case, as to where he was, was false at the time, and was not made before its effect and operation could be seen; and not before a time when there was an inducement for him to fabricate, for the purpose of putting himself in a position to bring suit against the defendant company, and was not made before there was a motive, inducing the false statement to be made by him.
    The Court: The testimony may be received for the purpose offered. The objection is overruled; and exception is noted for the defendant, and a bill sealed.
    (Evidence offered read to the jury.)
    Mr. Lilley, counsel for plaintiff: “We offer in evidence the testimony of Frank B. Lyke, the plaintiff, given on the trial of the case of George B. Lafey against the Lehigh Valley Railroad Company, in Number 22, May Term, 1906, taken on the 20th day of December, 1906, and found on page 80 of the stenographer’s notes of testimony of said trial — the extract offered being as follows:
    “A. And as I stood on the back side of those stones it threw me clear over the top of this stone, and I struck on my feet right next to this man Gardner — he laid right on the edge of the car — and as I went over there I either stepped on him or kind of went off on to my wagon.”
    This is for the purpose of showing that the plaintiff’s testimony in this case is not a fabrication of recent date.
    Mr. Maxwell, counsel for the defendant company: I object to the offer, on the ground that it is not rebutting, is incompetent, and in the nature of self-serving declarations or statements.
    The defendant does not claim that the evidence given by the plaintiff is of recent fabrication, but claims and contends that the plaintiff at the time he so testified in the case of George Lafey, was placing himself in a position to bring suit against the defendant company and what he testified to in that case, as to where he was at the time of the collision was false at that time and not true, and wasn’t made before its effect and operation could be seen, as it was made about one year after the accident, and not before there could have been an inducement to fabricate, and wasn’t made before there was a motive inducing false statements to be made by him.
    The Court: We will receive this evidence for the purpose offered; an exception is noted for the defendant company and a bill sealed. (3)
    Claude May, a witness, on the stand.
    Mr. Lilley, counsel for plaintiff: We offer to show by the witness on the stand, that immediately after the accident he had a conversation with the plaintiff, Mr. Lyke, in which he was informed by the plaintiff that he was on the car at the time of the accident, and that he was thrown forward and off the car and had his knee injured.
    This is for the purpose of showing that his testimony in this suit is not a fabrication of recent date.
    Mr. Maxwell, counsel for the defendant company: It is objected to, as incompetent, immaterial and not rebutting and is in the nature of self-serving declarations. The defendant claims that the statement of the plaintiff, that he was upon the car, was made for the purpose of putting himself in a position where he might bring suit against the defendant company and is therefore incompetent.
    The Court: For the purpose offered this testimony is received; an exception is noted for the defendant company and a bill sealed. (4)
    Mr. Lilley: Q. When was this conversation yon had with Mr. Lyke? A. Shortly after the accident. Q. How close to it? A. Probably fifteen or twenty minutes. Q. What did he say? A. Why, I asked him if he had been hurt; I saw him limping; and he said he had; he said he was on the car and was thrown off on the ground and hurt his knee, or leg.
    Patrick Costello, the engineer, was asked this question on cross-examination:
    Q. If there had been.a target on this switch standard, known as the Opera House switch, whether or not it would have made any difference with your running in on that switch that morning? A. Not that day — not that time.
    Mr. Lilley, counsel for plaintiff: That is objected to, as incompetent.
    The óourt: Yes, that is more a conclusion than a statement of fact. He may explain fully the situation, what he could see and what he couldn’t see, but this is more of a conclusion.
    Mr. Lilley: We ask to have his answer struck out.
    Mr. Maxwell, counsel for defendant company: I object to striking out the answer of the witness on the ground that it is not a conclusion it is the statement of a fact.
    The Court: We will strike out the answer of the witness and an exception is noted for the defendant company and a bill sealed. (5)
    Verdict and judgment for plaintiff for $2,900. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant; (2) refusal of motion for judgment for defendant n. o. v.; (3-5) rulings on evidence quoting the bill of exceptions.

      B. W. Barrett, with him E. H. Boles, for appellant.
    We contend, that under the testimony, the absence of the switch target was not. the proximate cause of the accident or injury: Ricard v. R. R. Co., 89 Pa. 193; Cummings v. Ry. Co., 92 Pa. 82; Laporte v. R. R. Co., 209 Pa. 469; Balt. & Ohio R. R. Co. v. Colvin, 118 Pa. 230.
    Under the testimony of Patrick Costello, the engineer, the absence of the target had nothing whatever to do with his engine running into the Opera House switch siding, at the time of. the accident. From his position in his cab and with his eyes riveted on Washington street crossing, some distance beyond the switch, he testified that he could not have seen the target had it been there.
    The accident may have happened, and probably would, if the target had been on the SAvitch stand, under the testimony of Mr. Costello. Therefore, the open switch was the proximate cause: Boehm v. Bethlehem Boro., 4 Pa. Superior Ct. 385.
    It cannot be said, that the negligence, if any, in not having a switch target, concurred with the negligence of the switchman, in leaving the Opera House switch open, to produce the accident: Dixon v. Butler Township, 4 Pa. Superior Ct. 333; Wallace v. Henderson, 211 Pa. 142; Chicago St. P., M. & O. Ry. Co. v. Elliott, 55 Fed. Repr. 949; Balt. & O. R. R. Co. v. School District, 96 Pa. 65; Savitz v. Lehigh, Etc., R. R. Co., 199 Pa. 218; Chicago & E. I. R. R. Co. v. Driscoll, 12 Am. & Eng. R. R. Cases (N. S.) 644; Ahern v. Melvin, 21 Pa. Superior Ct. 462; Boehm v. Bethlehem Borough, 4 Pa. Superior Ct. 385.
    The fact that the appellant, called many witnesses in the trial of the case at bar, who were present at the time of the accident, and who testified that appellee was not on the car at the time of the accident, and also called other witnesses who heard appellee say he was not on the car, would not entitle the plaintiff to introduce in rebuttal, his own evidence given upon the other trials: Clever v. Hilbery, 116 Pa. 431; Crooks v. Bunn, 136 Pa. 368; Thomas v. Miller, 165 Pa. 216; Com. v. Kay, 14 Pa. Super. Ct. 376; Com. v. Brown, 23 Pa. Superior Ct. 470.
    April 8, 1912:

      D. C. DeWitt, for appellee,
    cited, as to the proximate cause: Whitley v. Evans, 30 Pa. Super. Ct. 41; Bunting v. Hogsett, 139 Pa. 363; Sturgis v. Kountz, 165 Pa. 358.
   Opinion by

Mr. Justice Moschzisker,

The accident alleged to have caused the injury to the plaintiff occurred December 21, 1905; suit was brought October 28, 1907, and the trial was held on Monday 8, 1911. According to the proofs accepted by the jury, the plaintiff and several other men were engaged in unloading a monument and markers from a flat-car of the defendant railroad, which was standing on a siding in a certain yard of that company at Towanda, two boxcars being in close proximity. In some unexplained way the switch from the main track was left open, and the shifting engine used in and about the yard, while running backward and pulling several cars, ran on the siding and struck one of the box-cars so as to drive it against the flat-car upon which the plaintiff was working. The impact was so great that it threw the plaintiff into a wagon, which was standing at the side of. the car, and from thence to the ground, severely injuring him. At the point of the open switch there had previously been maintained a danger signal of the type known as a “target,” which showed white when the switch was closed and safe for trains on the main line, and red when open and dangerous; this target had been removed eighteen months before the accident. Expert witnesses testified that signals of this character were usual in the construction of such switches and were necessary to make railroad operation reasonably safe. The plaintiff contended that the defendant company was bound to provide him with a reasonably safe place to work, and that the absence of the target constituted a breach of this obligation and was the proximate cause of Ms injury. The defendant contended that it had been guilty of no negligence toward the plaintiff, that the proximate cause of his injury was the unexplained open switch, that if this switch was left open by any of its workmen the fellow-servant rule would apply; and, furthermore, that the plaintiff was not upon the car at the time of the accident and his ailments did not come from that cause. The issues were submitted to the jury in a fair charge which is not attacked in any of the specifications of error. The verdict was for the plaintiff; the assignments complain of the refusal of binding instructions and of judgment non obstante veredicto for the defendant, and of certain rulings upon the evidence.

The learned court below states: “Whether or not the company was negligent in not having a target at this point; and if so, whether such negligence caused or concurred in producing the plaintiff’s injury were pivotal questions. Had it been in place, would the engineer have seen it and avoided the accident? He was called by the plaintiff, and testified that he was proceeding up the track with his eyes fixed on the Washington street crossing, near the depot (a train being about due)'; that he knew the target was not there and was not looking for it, and that his vision was obstructed by the coal in front of him on the tender, and that he could not have seen it, had it been there. It is contended that this testimony brings the case within the rule of Fullmer v. N. Y. C. & H. R. R. Co., 208 Pa. 598, where a somewhat similar accident was caused by an open switch, and it was held that the absence of the target did not concur in producing the same, because the brakeman, who was on the car, was not looking toward the track, where the switch had been left open, but stood with his back towards it, looking in the opposite ■ direction. In this case (the present one), however, the engineer, whose testimony was somewhat evasive, testified that at the electric light switch, from which point he proceeded up the track, the target, if in place, could have been seen, had it been in place. This switch Avas at the left of the track, as the engineer went north, and but a few feet therefrom, and between him and the Washington street crossing, upon which his attention was fixed. The testimony discloses that this was a straight stretch of track; that from where the engine started north and until after the siding was passed there was nothing in the surroundings to obstruct the view at the point where the switch was located; and a number of witnesses, some of them experienced in railroading, testify in effect that the target, if in place at the time of the accident, would have been within range of the engineer’s vision. The jurors had an opportunity of acquainting themselves with the situation by visiting the locus in quo. We think the evidence warranted the submission of the questions involved to the jury for their determination, and we think there was evidence to warrant the conclusion reached, that the target would have been seen by the engineer, had it been in place. Whether or not the plaintiff was on the car, and whether his injuries were attributable to the accident, or existed prior thereto, were questions with reference to which many Avitnesses were called, resulting in a sharp conflict of testimony. Those questions however, were for the determination of the jury, and we do not feel warranted in disturbing the verdict rendered.”

The foregoing is a fair statement of the case. The engineer testified that he was on the alert and his mind was on his duty; he had been working on the switching engine around this yard for years, and there can be no doubt that had the target been in place he would have known that fact, and would in all probability have seen it and guided his locomotive accordingly, in which event this regrettable accident would have been avoided. The siding was in a railroad yard where shifting was constantly going on, and the maintenance of this switch, which so far as the testimony shows could have been opened by anyone at any time, without the usual target or safety appliance, constituted negligence towards persons like the plaintiff who were thereby placed in danger while working upon the defendant’s cars. That such a switch might be left open was to be anticipated; therefore, ordinary care required a signal, and human foresight had provided the target to guard against this very danger. Under the evidence in this case, we cannot say that the jury were wrong in reaching the conclusions that the defendant was negligent in not maintaining a target, that the engineer would have seen the target had it been there, and that being on the alert he would have avoided the accident. The first two assignments of error are overruled.

The third and fourth assignments are dismissed because they are not in accordance with the rules of this court. They expressly complain of the admission of certain testimony, — depositions taken at a former trial, — and while they indicate what was offered, at the end of each they simply state that the testimony was read to the jury and give a reference to the pages in the appendix where it can be found; hence it is necessary to look elsewhere to know just what testimony got before the jury. The purpose of these specifications of error was to place upon the record and bring before this court the testimony which actually went to the jury, and this they failed to do.

The fifth specification presents an interesting question of evidence. It complains of the admission of the testimony of a witness called by the. plaintiff in rebuttal. The plaintiff in his own behalf testified that he was on the car at the ‘time of the accident, and he was supported in this statement by several witnesses. Some of the witnesses for the defense swore that the plaintiff was not there, but in addition to this the defendant offered at least five witnesses who testified that the plaintiff fiad declared to them either specifically or in effect, that he was not on the car at that time. When the plaintiff was under cross-examination counsel for the defendant interrogated him as to whether he had not stated to these witnesses that he was not on the car but that notwithstanding this, he thought he might get something out of the accident as well as the rest of the boys, and that he did not sooner speak of his injuries because he was advised by counsel to keep quiet. The plaintiff denied all this, but witnesses for the defense testified, in substance, to the matters suggested in the cross-examination. The whole of this cross-examination was full of intimations and suggestions that the plaintiff’s testimony about receiving his injuries on the car was a deliberate fabrication to gain an unjust verdict. Under these circumstances the plaintiff offered the witness in question to prove that he had stated immediately after the accident (almost two years before the institution of his suit and more than five years before the trial)', that he was injured upon the car. “This for the purpose of showing that his testimony in this suit was not a fabrication of recent date.” The court admitted the evidence, and the witness testified that within fifteen or twenty minutes after the accident he saw the plaintiff limping and asked him if he had been hurt, whereupon the latter replied that he was thrown from the car to the ground and hurt his knee or leg.

Testimony of this character is known as evidence of a consonant statement; and this may be defined as a prior declaration of a witness whose testimony has been attacked and whose credibility stands impeached, which, considering the.impeachment, the court will allow to be proved by the person to whom the declaration was made, in order to support the credibility of the witness, and which, but for the existence of such impeachment, would ordinarily be excluded as hearsay. To sustain the admission of such declarations the impeachment must plainly appear and must go to the credibility of the witness. The law is well stated in State v. Parish, 79 N. C. 610, 614, thus: “The rule is, that when a witness is impeached — observe, when a witness is impeached— it is competent to support the witness by proving consistent statements at other times, just as a witness is supported by proving his character, but it must not be construed as substantive evidence of the truth of the facts any more than any other hearsay evidence. The fact that supporting a witness who testifies, does indirectly support the fact to which he testifies, does not alter the case. That is incidental. He is supported, not by putting a prop under him, but by removing a burden from him, if any has been put upon him. How far proving consistent statements will do that must depend upon the circumstances of the case. It may amount to much.or very little.” In Pennsylvania we have a number of cases in which the admission of such testimony has been sustained and others in which it has been refused. Most of these cases are reviewed by President Judge Rice in Commonwealth v. Kay, 14 Pa. Superior Ct. 376, and again in Commonwealth v. Miller, 31 Pa. Super. Ct. 317 and Commonwealth v. Brown, 23 Pa. Super. Ct. 470; in addition to the authorities there mentioned the propriety of evidence of this character was dealt with in Foster v. Shaw, 7 S. & R. 156; Packer v. Gonsalus, 1 S. & R. 526, and it is very generally recognized in such text-books as Stephen’s Digest of Evidence (Chase Edition) 235; 1 Greenleaf on Evidence (15th Ed.) 615; Wharton on Evidence, sec. 570; Starkie on Evidence (10th Ed.) 253. While the authorities are not altogether consistent, yet in a case like this, where a chief defense was that the plaintiff’s testimony was perjured and he was attacked on cross-examination and otherwise by intimations that his course of conduct concerning the accident was not an honest one and that he had fabricated his claim in order to secure a verdict, and where his credibility was further impeached, by proofs of alleged inconsistent and contradictory statements upon a point vital to his case, and by evidence that he had said nothing of his injuries immediately after the accident when it would have been natural for him to speak, and that he had endeavored to excuse this on a plea of advice of counsel, there is ample authority to sustain the admission of the evidence in rebuttal. The testimony simply went to a collateral issue, viz, the credibility of the plaintiff, and it was so explained to the jury. Numerous witnesses were produced on each side as to the substantive facts involved in the main issues, whether the plaintiff was upon the car at the time of the accident and whether he received his injuries in that way; and, although these matters were incidentally covered by this other evidence, we cannot think that it could have had any material weight with the jury in determining those issues. However this may have been, to a considerable extent the admission of such testimony is a matter to be decided in each case by the trial judge in the exercise of a wise discretion and depends largely upon the character and degree of impeachment indulged in by the opposite party. Here the jury had the testimony of numerous witnesses for the defendant to declarations by the plaintiff contrary to his evidence given at the trial, and this with the other impeachments, despite the assertion of counsel for the defense, in objecting to the rebuttal testimony, that he did not so intend, could well be taken as conveying the charge that the plaintiff’s testimony was not the story told by him from the time of the accident but one concocted for the purpose of the trial, or what is known in the law as a recent .fabrication; therefore the trial judge was within his right in permitting the plaintiff to show that his testimony at the trial was consistent with his declarations made a few minutes after the accident and years before the suit was brought. Whether or not the declarations then made were for the ■ purpose of putting him in a position subsequently to bring suit against tbe defendant, was for tbe jury to consider in passing upon the weight of the evidence.

The writer of this opinion had occasion when in the Common Pleas of Philadelphia County to discuss the general subject with which we have been here dealing, in the case of Commonwealth v. Mosier, 13 Pa. D. R. 421, and the authorities upon the character and method of impeachment which justifies the admission of evidence of consonant statements will be there found reviewed and stated at large. It is not usually permissible to support the credibility of a witness by evidence that he had made a former statement similar to his testimony in the case on trial, and the best considered authorities hold that evidence of this character should not be allowed except in rare instances where the credibility of a Avitness is impeached in such a manner and to such an extent that the trial judge feels convinced that the witness is entitled to the support. Where this is so, and proper instructions are given to the jury concerning the real purpose and value of the testimony, no harm is likely to follow. In the present case instructions were given in such plain terms that the jury must have understood that the office of the testimony was simply to support the credibility of the plaintiff, and that, if believed, it was not to be taken as evidence, either direct or corroborative, of the facts contended for by him; further, that its weight was entirely for them. Under the circumstances we are not convinced that the learned court below committed reversible error in admitting the rebuttal testimony, and the fifth assignment is overruled.

The sixth assignment complains that the trial judge struck out a declaration by the defendant’s engineer to the effect that, if there had been a target upon the switch it would not have made “any difference” in his running on the siding at the time of the accident. The court ruled that this was not a statement of fact but a mere conclusion of the witness, that he could state all the surrounding facts but it was for the jury to draw the conclusions; in this we see no error, and the assignment is overruled.

The judgment of the court below is affirmed.


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    Snowden v. Philadelphia Rapid Transit Company, Appellant.

      Negligence — Street railways — Sudden halt and start of car— Passenger — Evidence — Case for jury.

    In an action against a street railway company to recover damages for death of a woman passenger, the case is for the jury and a verdict and judgment for plaintiff will he sustained, where there is testimony tending to show that as the car on which the deceased was riding, approached a regular stopping place and was running very slowly, it was suddenly halted and then suddenly started forward on a curve, throwing the deceased from the body of the car where she was standing onto the platform and from the platform to the street.
    Argued March 18, 1912.
    Appeal, No. 365, Jan. T., 1911, by defendant, from judgment of C. P. No. 1, Phila. Co., Sep. T., 1908, No. 960, on verdict for plaintiffs in case of Frances Isabel Snowden, et al., v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’smother. Before Magill, J.
    The opinion of the Supreme Court states the facts.
    - Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant and in refusing defendant’s motion for judgment n. o. v.

      April 8, 1912:

      Sydney Young, for appellant.

      W. W. Porter, of Porter, Foulkrod & McCullagh, for appellees.
   Per Curiam,

This action was by children to recover the loss occasioned by the death of their mother, alleged to have been caused by the negligent operation of the defendant’s car. The only question raised by the assignments of error is whether the case should have been withdrawn from the jury. There was testimony tending to show that as the car approached a regular stopping place, and was running very slowly, it was suddenly halted and then suddenly started forward on a curve, throwing the deceased to the platform and from the platform to the street. The pivotal question of fact was whether she was standing within the body of the car or had stepped from the front doorway to the platform. This question was submitted to the jury with the clear and distinct instruction that if she had stepped to the platform while the car was in motion there could be no recovery. Since there was testimony that would justify a finding that she was standing within the body of the car and was thrown from her position by a violent and unusual motion of the car, the case was for the jury.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Kelly’s Estate.

      Wills — Charitable bequests — Attesting witness — Interested witness — Act of April 26, 1855, P. L. §28.

    Inasmuch as a will and codicil are in contemplation of law one testamentary act, where a will is itself without subscribing witnesses but a codicil thereto is attested the attestation of the latter is the attestation of the former, and saves charitable bequests in the former from the operation of the Act of April 26, 1855, P. L. 328, which otherwise would defeat it, providing the attesting witnesses to the codicil are without interest in the will.
    A charitable bequest in a will made prior to the passage of the Act of June 7, 1911, P. L. 702, is defeated by the mere fact that one of the attesting witnesses is a legatee under the will; and it is immaterial that the legatee was required to pay to a third person a designated sum as a condition of taking the property bequeathed to him, even though the designated sum may have been more than the value of the property.
    Argued March 18, 1912.
    Appeal, No. 347, Jan. T., 1911, by The Philadelphia Theological Seminary of St. Charles Borromeo, from decree of O. C. Phila. Co., Jan. T., 1909, No. 573, dismissing exceptions to adjudication in Estate of Patrick M. Kelly, deceased.
    Before Pell, C. J., Brown, Piotter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing exceptions to adjudication.

      John G. Johnson, with him Anthony A. Hirst, for appellant.
    The interest of Hahn was not such as disqualified him: Kessler’s Est., 221 Pa. 314; Jeanes’s Est., 228 Pa. 537; Historical Society v. Kelker, 226 Pa. 16.

      April 8, 1912:

      T. M. Daly, for appellees.
    The will having no attesting witnesses, the gift to charities therein was void: Paxson’s Est., 221 Pa. 98; Walton’s Est., 194 Pa. 528.
    The codicil in this case did not expressly republish the will, and besides had for one of its witnesses a legatee named in the will, who received property worth $2,541.79 as such legatee, and who, therefore, was not a disinterested witness within the meaning of the statute: Kessler’s Est., 221 Pa. 314; Fetterhoff’s Est., 228 Pa. 535; Stinson’s Est., 232 Pa. 218.
    A legatee in a will becomes disqualified to either prove the will or any codicil thereto as affecting charities because of his interest as such legatee: Historical Society v. Kelker, 226 Pa. 16.
   Opinion by

Mr. Justice Stewart,

The only attestation to the execution of this will is in connection with the codicil thereto. The will proper is signed by the testator, but there are no subscribing witnesses to the signing. To the execution of the codicil, made a year or more subsequent, there are two attesting witnesses. It follows that without the codicil the will would be invalid as to the several charitable bequests therein contained. The will and codicil being in contemplation of law one testamentary act, the attestation of the latter is the attestation of the former, and saves the former from the operation of the statute which otherwise would defeat it, providing the attesting witnesses to the codicil are without interest in the will. And this is the only question here. One of the attesting witnesses is John D. Hahn. The will contains the following provision with respect to him: “I leave my drug business and house furniture to my clerk John H. Hahn on condition that he pays one thousand dollars to Miss Ella Cowan, my housekeeper.” It is argued that inasmuch as it has not been shown that at the time of the execution of the will the drug business and furniture exceeded in value the amount the legatee was to pay to Ella Cowan, it cannot be said that Hahn has a pecuniary interest in the will. A clear presumption aifises from the gift itself that benefit and advantage to Hahn was intended. The subsequent appraised value shows that there was no disappointment or failure in this regard. But aside from this, Hahn is a legatee under the will, and this circumstance alone disqualified him as a witness under the distinct ruling in Kessler’s Estate, 221 Pa. 314. The law will not attempt to weigh and measure the advantage resulting to the legatee in order to determine the question of his competency as an attesting witness to a will of this character. It will assume his interest from the single fact that he is a legatee named in the will.

The assignments of error are dismissed and the decree is affirmed.


text:
    Leech’s Estate.

      Wills — Charitable bequests — Attesting witness — Interested witness — Acts of April 26,1855, P. L. 828, and June 7,1911, P. L. 702.

    1. Under tbe Act of April 26, 1855, P. L. 328, as it stood unamended by tbe Act of June 7, 1911, P. L. 702, a witness who was a legatee under a will, although not interested in a charitable gift being contested, was not a disinterested witness within the'meaning of the earlier act. The Act of June 7,1911, had no retroactive force and was not applicable to wills executed prior to its date.
    2. Where a will containing charitable bequests, has as one of its two attesting witnesses a legatee under the will, the charitable bequests are not saved by the fact that there were two codicils to the will each attested by one disinterested witness, and that witness not one of the subscribing witnesses to the will proper.
    Argued March 18, 1912.
    Appeal, No. 79, Oct. T., 1912, by Jesse Leech Davison, from decree of O. C. Allegheny Co., Oct. T., 1911, No. 59, dismissing exceptions to adjudication in Estate of Sarah S. Leech, deceased.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    From the record it appeared that the original will of the testatrix dated Nov. 11, 1898, contained several charitable bequests and was witnessed by C. F. Bingaman, a legatee under the will, but not interested in the charities, and by Caroline D. Childs. On February 11, 1908, the testatrix executed a codicil appointing an executor in place of one of the executors in the original will who had died. This codicil was witnessed by I. M. Arnold, who was a disinterested witness. On March 30, 1908, testatrix executed a second codicil by which she gave a small money legacy to an individual. This codicil was witnessed by George B. Logan, who was a disinterested witness. Testatrix died June 3, 1910. The auditing judge held that the charitable bequests were valid, and the court in an opinion by Hawkins, P. J., dismissed the exceptions to the adjudication.
    April 8, 1912:

      Errors assigned were in dismissing exceptions to the adjudication.

      Wm. W. Wishart, with him J. Boy Dickie and Oscar F. Davisson, for appellant.
    Dr. Bingaman, a legatee, w'as not a disinterested witness: Kessler’s Estate, 221 Pa. 314; Historical Society v. Kelker, 226 Pa. 16; Kelly’s Estate, 21 Pa. D. R. 81; Fetterhoff’s Estate, 228 Pa. 535.
    The case at bar is not affected by the act of June 7, 1911, P. L. 702: Kelly’s Estate, 21 Pa. D. R. 81; West Branch Boom Co. v. Dodge, 31 Pa. 285; Greenough v. Greenough, 11 Pa. 489; Taylor v. Mitchell, 57 Pa. 209; Packer v. Packer, 179 Pa. 580; Salters v. Tobias, 3 Paige Ch. (N. Y.) 338.

      A. M. Thompson and William A. Steinmeyer, with them James G. Gray and Don Bose, for appellee.
    Within the meaning of the statute, a disinterested witness is one who has no legal interest: Combs’ App., 105 Pa. 155; Kessler’s Est., 221 Pa. 314; Fetterhoff’s Estate, 228 Pa. 535; Jeanes’s Est., 228 Pa. 537; Stinson’s App., 232 Pa. 218.
    A codicil to a will is presumed to carry with it a republication of the whole instrument: Dobbins’s Estate, 221 Pa. 249.
   Opinion by

Mr. Justice Stewart,

What was said in Kessler’s Estate, 221 Pa. 314, and all that was there said, was a deliberate expression of this court of the true meaning and effect of the provision in the Act of April 26, 1855, P. L. 328, requiring the attestation of two disinterested witnesses to the execution of a will containing charitable bequests. In no case since decided has there been any attempt or disposition to qualify anything that appears in the argument supporting the conclusion there reached. Because in subsequent cases presenting similar issues, but where the facts differed, we have emphasized only so much of the ruling there as was applicable to the case then under consideration, an impression seems to prevail in some quarters, — so at least this and another appeal to our present term would indicate, — that Kessler’s Estate is authority for nothing beyond its own peculiar facts; that is to say, that it decides nothing more than that an attesting witness, who is interested in or connected with the charity to be benefited, is not such disinterested witness as the law requires. What we have said above is a sufficient answer to this. The ruling in Kessler’s Estate is, “If the attesting witness be interested as legatee or devisee under the will, or is to derive a pecuniary benefit or advantage from any part of it, or if he is interested at the time of attestation in a religious or charitable institution to be benefited thereby, he is not disinterested within the meaning of the statute.” This was a carefully considered conclusion in which all concurred, and was meant to remove all doubt and uncertainty as to the true meaning of the act. In the present case the will contains several charitable bequests. One of the two attesting witnesses is a legatee under the will. While there are two codicils to the will, each attested by a disinterested witness, and that witness not one of the subscribing witnesses to the will proper, such circumstance does not bring the attestation of the will within the requirements of the statute. To have such effect the codicil would have to be a republication of the original will, and the requirements there, with respect to attestation, would be the same as in the case of the will itself. The case clearly falls within the ruling in the case referred to, and it was error in the court to hold otherwise.

At a recent session of the legislature an amending act to the Act of April 26, 1855, was passed June 7, 1911, P. L. 702, wherein it is provided, in interpretation and construction of the earlier act, that attesting disqualification to the execution of a will containing charitable bequests or devises, attaches only where the witness is interested in the charity benefited, the language of the amending act being, “A disinterested witness being a witness not interested in such religious or charitable use, this act not being intended to apply to a witness interested in some other devise, bequest, or gift in the same instrument.” It was no less error in the court below to hold that this legislative construction of the earlier act prevails to save the will here involved, executed more than twelve years before the amending act was passed. That it was entirely competent for the legislature of 1911 to declare what meaning shall attach to an act passed in 1855 is not questioned, and it must follow of course that the more recent legislative interpretation must govern in the construction of the earlier act, in cases subsequently arising. The cases cited by the learned trial judge go no further. Until the Act of 1911 was passed, the Act of 1855, judicially construed, disqualified as an attesting witness to a will containing charitable bequests any one interested as legatee or devisee in the will. A subsequent legislative declaration that this construction expressed the true intent and purpose of the act, would have given no greater security to those who had succeeded to estates under the judicial construction of the act. No more can a subsequent contrary legislative construction weaken their security. Out of the great abundance of authority upon this proposition, it is sufficient if we refer to the case of Greenough v. Greenough, 11 Pa. 489. To give the Act of June 7,1911, retroactive force would be so clearly beyond legislative power/ as is shown in the case cited, that we entertain no thought that it was so intended. This very question was raised in the case of Martha Shoemaker’s Estate, decided at the present term in a per curiam opinion without discussion.

The assignments of error are sustained, and distribution ordered in accordance with the views here expressed.


text:
    Schwab, Appellant, v. Schneider.

      Landlord and tenant — Eviction — Proceedings to obtain possession — Act of March SI, 1905, P. L. 87.

    Where a tenant has been put out of possession in proceedings before a justice of the peace, in accordance with the requirements of the Act of March 31, 1905, P. L. 87, and has not appealed from the judgment of the justice nor removed the record by a certiorari to the court of Common Pleas, he cannot thereafter maintain an action of trespass against his landlord for an alleged wrongful eviction because he had not received three months’ notice to quit which he claimed he was entitled to have as a tenant from year to year.
    Argued March 19, 1912.
    Appeal, No. 66, Jan. T., 1912, by plaintiffs from order of C. P. No. 5, Phila. Co., Dec. T., 1908, No. 1158, refusing to take off nonsuit in case of William Schwab and Amanda Schwab, his wife, v. Peter Schneider, Charles L. Greisser and Mary A. Greisser, his wife, and John Serembus.
    Before Fell, C. J., Beiown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass for an alleged wrongful eviction and abuse of process.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Balston, J., filing the following opinion:
    This was an action of trespass. The plaintiff alleged that the defendants had unlawfully dispossessed him of the premises, and asked damages therefor.

      It appeared on the trial that the defendant, Schneider, had purchased the property in 1905 from one Arnold, that on July 24, 1907, he gave the tenant notice to quit on September 24th, 1907. After giving this notice to quit, on July 27, 1907, Schneider sold the premises to Greisser and his wife.
    The tenant did not give up possession in pursuance of the notice and proceedings, under the Act of March 31, 1905, P. L. 87, were begun before the magistrate for the purpose of obtaining possession. The tenant was duly served with notice of these proceedings, but did not appear, and judgment was rendered against him.
    A writ of possession was issued by the magistrate and possession was accordingly taken by the defendant, Serembus, the constable.
    On the trial the tenant testified that in 1900 he had leased the premises from the former owner, Arnold, for a year, and from that time had held over as tenant from year to year.
    There appears to be no irregularity apparent upon the face of the record of the proceedings before the magistrate. That record shows that the lease was for less than one year, that thirty days’ notice to quit had been given, and that the tenant refused to remove from the premises — therefore all the requirements of the Act of 1905 appear to have been complied with, and the magistrate had jurisdiction.
    If the tenant had any defense to the proceedings, or if there was any irregularity in the procedure, he should have taken an appeal or have brought the record before the Court of Common Pleas by certiorari. He took neither of these steps, and therefore, he must be held to be bound by the judgment of the magistrate. He cannot recover damages against the defendant for putting him out of possession by proceedings begun and prosecuted in accordance with law.
    The judgment of the magistrate must be regarded as final, as no proceedings have been taken to have it reversed.
    April 8, 1912:
    The defense offered, namely, that the tenant was a tenant from year to year, and therefore was entitled to three months’ notice to quit, should have been put in at the hearing before the magistrate.
    As the proceedings before the magistrate appear to have been regular, and were not appealed from, a non-suit was properly entered.

      Error assigned was in refusing to take off nonsuit.
    ' Samuel H. Kirkpatrick, with him William H. B. Lu-kens, for appellants.

      Ulysses S. Koons, with him Charles C. Gerhard, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned Judge of the Common Pleas.


text:
    Stead v. Randall, Appellant.

      Mortgage — Agreement to extend mortgage — Forfeiture clause— Waiver.

    1. An agreement to extend a mortgage which provided that the principal of the mortgage shall not be demanded “during the extended term if the interest be paid quarter yearly ... and the other terms of the bond and mortgage are duly performed,” does not supersede a provision in the mortgage that in case of a default in the payment of interest quarterly within thirty days of the time it became due, the principal debt should become due and payable immediately.

      Affidavit of defense — Sufficiency — Averment of tender — Authority of agent — Interest — Mortgage.
    2. On a scire facias sur mortgage an affidavit of defense is insrifficient which avers that the defendant tendered to the attorney for the plaintiff at his office one quarter year’s interest upon the bond and mortgage, without any averment as to what was tendered, or as to the authority of the attorney to receive payment.
    Argued March 20, 1912.
    Appeal. No. 101, Jan. T., 1912, by G. Harry Davis, party defendant, from order of C. P. No. 3, Phila. Co., Dec. T., 1911, No. 1794, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Hannah A. Stead, Assignee of Hannah A. Stead, Executrix of Estate of James A. Stead, deceased, v. Harry L. Randal and Irene B. Randal, his wife, Mortgagors and G. Harry Davis, Real Owner.
    Before Fell, O. J., Brown, Piotter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

      April 8, 1912:

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      H. Edgar Barnes, with Mm J. B. Kiniey, for appellant.

      Wm. B. 8. Ferguson, for appellee.
   Per Curiam,

This appeal is from an order making absolute a rule for judgment for want of a sufficient affidavit of defense in a proceeding by scire facias on a mortgage, for default in payment of interest. It was provided in the mortgage that in case of a default in the payment of interest quarterly within thirty days of the time it became due, the principal debt should become due and payable immediately. The grounds of defense set up by the affidavit are (1) that an agreement between the parties extending the time for payment of the principal superseded the clause of forfeiture, and (2) that tender of interest was made within thirty days of the time it became due. The agreement referred to provided that the principal of the mortgage would not be demanded “during the extended term if the interest be paid quarter yearly.....................and the terms of the bond and mortgage are duly performed.” The agreement of extension was thus made expressly subject to the terms of the original mortgage.

Whether the tender of interest was in time, it is unnecessary to consider as a good tender was not alleged. The averment is that the defendant tendered to the attorney for the plaintiff at Ms office one quarter year’s interest upon the bond and mortgage. The affidavit is silent as to what was tendered, whether “lawful money” as provided by the mortgage or other kinds of money or check, and also as to the authority of the attorney to receive payment. No offer was made to supplement the affidavit by setting forth facts from which 'it could be determined whether there had been a tender good in law and there was nothing before the court but the bald assertion of a conclusion.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Rhodes v. Wetherill, Appellant.

      Principal and agent — Sale of stoclc of corporation — Production of purchaser — Gontract.
    An agreement which contemplates the production of a purchaser for a certain number of shares of stock of a corporation is not complied with by the production of a purchaser who offers to take, not the number of shares designated, but stipulates for the entire amount of the capital stock of the corporation, and offers to make payment therefor not at the time, but within thirty days thereafter, upon the further condition that the result of an examination into the financial affairs of the company shall be satisfactory to the proposed purchaser.
    Argued Feb. 7, 1912.
    Appeal, No. 9, Jan. T., 1912, by defendant from judgment of C. P. Delaware Co., Sept. T., 1908, No. 133, on verdict for plantiff in case of Charles M. Rhodes v. Robert Wetherill.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Assumpsit to recover compensation for the sale of the stock of a corporation. Before Jiohnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,670. Defendant appealed.

      Error assigned was in refusing to enter judgment for defendant n. o. v.

      April 15, 1912:
    O. B. Dickinson, with him William B. Harvey and Geo. B. Lindsay, for appellant.

      W. Roger Fronefield, for appellee.
   Opinion by

Mr. Justice Potter,

It is difficult to reconcile the verdict of the jury in this case with any theory presented by either side at the trial. Plaintiff claimed to be entitled to the benefit of an agreement made by Charles L. Taylor with the defendant Robert Wetherill, under which the plaintiff in his capacity as a broker, alleged that he was entitled to recover compensation for the sale of 2,883 shares of the capital stock of the Gas Company of West Chester, at the rate of $5.00 per share, amounting in all to the sum of $14,165, and interest thereon. In his statement of claim, the plaintiff sets forth that the defendant was the owner or in control of 2,833 shares of the capital stock of the gas company, and that certain negotiations were had which resulted in an oral agreement with defendant by which there was given to plaintiff the right to make sale of the stock upon the understanding that whatever should be obtained therefor in excess of $35.00 per share should be given to plaintiff as compensation for his services in procuring a purchaser for the stock. It was further alleged that in pursuance of this agreement, plaintiff did procure the Heald-Stevens Company of Michigan as a purchaser for the stock at the price of $40.00 per share, and that he took the president of the said purchasing company to the defendant for the purpose of receiving the shares of stock from the defendant, and paying him therefor. That the said president of the purchasing company tendered to the defendant the sum of $5,000 to bind the bargain, which the defendant refused to accept, and also refused to enter into any agreement with the said company for the sale of the stock.

Upon the other hand, the defendant denied that he ever entered into anything in the way of a contract with the plaintiff, giving him the right to make sale of. the stock to other parties, and he testified at the trial that he had done nothing more in the matter than to state that the price for his stock was $35.00 per share, and that he would not consider an offer of a sum less than that, and would pay no commission. Under these contradictory statements, therefore, plaintiff was entitled to the full amount of his claim, or to nothing whatever. The verdict which was rendered by the jury is not, as to its amount, supported by the averments in the statement of claim, or by anything which appears in the evidence.

An examination of the record and of the proofs submitted at the trial, shows that Charles L. Taylor testified that the defendant refused to take less than $35.00 per share for his stock, but authorized him to sell it at any price which he could obtain above that figure, and retain the difference for himself as compensation. It does not appear that the plaintiff Rhodes knew of this arrangement until after it was made. There was testimony tending to show that Taylor was acting in his behalf. That matter is, perhaps, immaterial in so far as this case is concerned.

It appears clearly that the defendant owned 1,670 shares of the stock. It was testified on behalf of plaintiff, that defendant said that he had an understanding with certain other stockholders that they would act with him in the sale of the stock. The defendant, however, denied having made any such statement, or that there was in fact any such understanding. But it was upon the theory that the defendant could in this way 'control the delivery of 2,833 shares of the stock that the plaintiff based his claim for commissions to that extent. It will be noted that the subject matter of the alleged contract was the sale of shares' of capital stock in a corporation, and not the physical plant of a gas company. Of course, the purchase of the shares carried with it the control of the business; but it was the shares of stock which were to be the subject of negotiation and sale, rather than the property itself.

Plaintiff’s theory, and his story of the transaction was in substance that he had, under the agreement with the defendant, the right to sell the stock, and to retain for himself as compensation for his services, everything that he could obtain for it over and above the sum of $35.00 per share. How, then, did he, according to his own statement, comply with this agreement? According to the evidence, the purchaser which plaintiff produced, went to the defendant, not with an offer to purchase the stock and pay for it at the time, but instead with an agreement which he desired the defendant to sign, by which the defendant was to deliver not merely the 1,670 shares of stock which he owned, but also 1,163 shares belonging to other parties, whose ownership it was supposed he could control, and in addition to that, 167 shares of stock whose ownership was scattered, the whole comprising the entire 3,000 shares of the capital stock of the Gas Company, for which the purchaser was to pay $40.00 per share within thirty days from the date of the execution of the proposed agreement. Even at that, the paper did not amount to a positive agreement to purchase the sf ock, for it was stipulated that after the signing of the agreement, the proposed purchaser was to be permitted to make an examination of the books and papers and business of the gas company, and the consummation of the agreement was made to depend on the result of that examination. Certainly, such an offer as this cannot be considered an unconditional agreement to purchase. The transaction did not amount to a sale of the stock for cash, and was not a compliance with the terms of the alleged contract, as set forth in plaintiff’s statement of claim or in the evidence offered by plaintiff. An agreement which contemplates the production of a purchaser for a certain number of shares of stock of a corporation is not complied with by the production of a purchaser who offers to take, not the number of shares designated, but stipulates for the entire amount of the capital stock of the corporation, and offers to make payment therefor not at the time, but within thirty days thereafter, upon the further condition that the result of an examination into the financial affairs of the company shall be satisfactory to the proposed purchaser.

We cannot find from the evidence that the plaintiff made out his case, even as he outlined it for himself. He did not show compliance with the agreement which he alleged was made with the defendant. The court below erred in refusing to enter judgment in favor of the defendant non obstante veredicto. The assignments of error are sustained, and the judgment is reversed, and is now entered for the defendant.


author: Mr. Justice Elkin,

text:
    Hill, Appellant, v. Fetherolf.

      Municipalities — Cities of the third class — License — Millc inspection.

    1. A city of the third class has the power to enact an ordinance purporting, as its title shows, “to secure the wholesomeness and purity of milk, meat and meat products, by authorizing the inspection thereof, by providing for the licensing of persons dealing therein, by prohibiting the sale or offering for sale of milk, meat and meat food products which are impure, unwholesome or adulterated, or otherwise unfit for human consumption, by providing penalties for the enforcement of the same,” and directing the appointment of a “meat and milk inspector,” providing for the licensing of vendors upon payment of $10 per year. An ordinance of this nature is an exercise of the police power of the city, and cannot be considered in any way a trade regulation.
    2. Such an ordinance may properly provide that no license shall issue to sell the millc of any dairy or herd wherever situated unless the owner thereof shall submit the dairy and herd to a proper inspection. The ordinance is not rendered void by the fact that it also provides for an inspection of places of persons holding a license where such places are in the city limits and within twenty miles of the city limits, and a revocation of such license, if the premises are found unsanitary, or if an inspection is refused to be allowed.

      Argued Feb. 26, 1912.
    Appeal, No. 189, Jan. T., 1912, by plaintiff from order of C. P. Berks Co., June T., 1911, No. 7, refusing petition for mandamus in case of Henry K. Hill v. George R. Fetberolf.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Petition for mandamus. See Reading v. Miller, 45 Pa. Superior Ct. 28.
    The title and material portion of the ordinance was as follows:
    AN ORDINANCE.
    To secure the wholesomeness and purity of milk, meat and meat products, by authorizing the inspection thereof, by providing for the licensing of persons dealing therein, by prohibiting the sale or offering for sale of milk, meats and meat food products which are impure, unwholesome or adulterated, or otherwise unfit for human consumption, by providing penalties for the enforcement of the same.
    Section 5. It shall be the duty of the inspector to visit as often as may to him seem necessary in the city of Reading and within twenty miles of the city limits, the butchering shop and business places of all persons holding a license to sell meat or milk in the city of Reading, or where animals are slaughtered or meat or meat food products are prepared or stored, or where milk is kept, for the purpose of ascertaining whether such places are in a sanitary condition, and take samples for chemical analysis, and if found unsanitary, or if such person shall refuse to allow said inspector to examine said premises, then the inspector shall immediately certify said fact to the Board of Health, and after due notice to such licensee, and after a hearing before said Board of Health, said license may be revoked.
    Section 6. On and after the passage of this ordinance all dealers and vendors, and all persons who sell or offer for sale milk, meat and meat products in the city of Beading, shall, upon order of the milk and meat inspector,- after proper inspection as to the sanitary conditions, pay into the city treasury the sum of ten dollars ($10.00) and receive therefor a receipt, presentation of which at the office of the milk and meat inspector shall entitle him to a license; Provided, That all the provisions and requirements as contained in the following sections are complied with.
    Endlich, P. J., filed the following opinion:
    This case arises under an ordinance of the city of Beading approved fourth February, 1909, which was upheld in Beading v. Miller, 15 Pa. Superior Ct. 28. But whilst there the ordinance was attacked upon certiorari to the judgment of a magistrate inflicting its penalties, this proceeding is, in affirmance of its validity, to compel the issuing to the complainant of a license to sell milk under it. Belying upon it for the right he asserts and the duty he asks to have enforced, he is bound to bring himself within it by showing compliance on his part with its provisions. The utmost' he can be permitted to do in the way of questioning any one of those is to show that it does apply to him, or that, applying to him, it imposes upon him a condition which cannot be lawfully imposed. In that event, conceding the general validity of the ordinance, he may be heard to contend that he is entitled to its benefits without conforming to the disputed provision. So circumscribed, this case presents, upon the pleadings as amended by agreement of counsel, the single inquiry whether the defendant, as Meat and Milk Inspector for the city of Beading, was justified in refusing to plaintiff the license he sought under the ordinance because the owner of the herd from which the milk came declined to permit a previous inspection of his herd and premises.
    [In Sec. 3, the ordinance enjoins npon the inspector strict observance of the rules and regulations of the Board of Health. The-answer sets forth and the demurrer necessarily admits: Com. v. Cullen, 13 Pa. 132, 143; Miller v. Canal Com’rs, 21 Pa. 23, 26; Com. v. Dickinson, 83 Pa. 458, 460; Getty v. Pa. Inst, for Instruction of Blind, 194 Pa. 571, 575, that those rules and regulations require, before issuance of a license to sell milk in the city, an inspection, by the inspector, of the herd producing the milk to be sold by the applicant and of the premises where such herd is kept, — and that they also require the application for the license to be made in the form in which it was in this case demanded. In addition, it is provided in Sec. 6 that the order of the inspector entitling an applicant to a license upon payment of the license fee shall be made after inspection.] (2)
    Granted, as it must be, that the regulation of the sale of milk within its limits is among the lawful police powers of a city, there is no reasonable ground for doubting that an examination into the sanitary conditions of the herds and their surroundings is an essential part of it. Indeed, without that every other method of regulation must inevitably fall far short of accomplishing its main and legitimate purpose.
    [But it is objected that, in so far as the inspection of herds and of the premises where they are kept is to be made beyond the territorial boundaries of the city, the latter has no authority to require it to be made, or to make it, through its officer.] (3) This contention is well answered in State v. Nelson, 66 Minn. 166 (68 N. W. Repr. 1066), (reaffirmed by the same court in State v. Elofson, 86 Minn. 103, 90 N. W. Repr. 309), where, under statutory authority to provide by ordinance for the inspection of milk and dairy herds within the limits of a city, the latter was held warranted in exacting that an applicant for a license to sell milk in the city consent to an inspection by the municipal officer of the herds yielding the milk to be sold though such herds be kept beyond the city limits. The language of the former decision so fully and exactly covers the question as it arises in this case that it may be here adopted without attempting to add anything to it. Says the court:—
    “The objection is that the provisions of the ordinance are not within the limits prescribed for it by the statute, for the reason that it is attempted to make its operation extraterritorial, in that it provides for the inspection of dairies and dairy herds outside the city limits. There is no merit in this point. The manifest purpose of the statute under which this ordinance was passed was to enable the city council to adopt such reasonable police regulations as would prevent the sale of unwholesome milk within the city. . . . It is a matter of common knowledge that much of the milk sold in a city is produced in dairies outside the city limits. Any police regulations that did not provide means for insuring the wholesomeness of milk thus brought into the city for sale and consumption would furnish very inadequate protection to the lives and health of the citizens. It is also a matter of common knowledge . . . that the wholesomeness of milk cannot always be determined by an exámination of the milk itself. To determine whether it does or does not contain the germs of any contagious or infectious disease it is necessary to inspect the animals which produce it. The inspection of dairies or dairy herds outside the city limits provided for by this ordinance applies only to those whose milk product it is proposed to sell in the city. The provisions of the ordinance in that regard go only so far as it is reasonably necessary to prevent the milk of diseased cows being sold within the city. This inspection is wholly voluntary on the part of the owner of the dairy or dairy herd. If he does not choose to submit to such inspection, the result merely is that he or the one to whom he furnishes the milk cannot obtain a license to sell milk within the city. The ordinance has no extraterritorial operation, and there has been no attempt to give it any such effect. The only subject on which it operates is the sale of milk within the city.”
    Logically this disposes also of the plaintiff’s claim that in providing for the inspection of herds and premises beyond the city limits by the city’s inspector the ordinance contravenes the declaration of Sec. 8, Act of May 25, 1907, P. L. 234, that “local meat inspectors shall have jurisdiction only within the limits of the city ... by and for which they are appointed,”— even if that limitation, occurring in a statute exclusively relating to meat and meat food products, could be understood as applying to the defendant in his capacity as milk inspector, which, it would seem, it cannot.
    It thus appears to be plain that under the ordinance of fourth February, 1909, an applicant for license to sell milk in the city of Reading must secure his supply from a person who is willing to submit to a previous inspection of his herd and premises, and that if he does not choose to do so the inspector, the defendant in this case, is not only justified in refusing the application, but forbidden to allow it.
    [It may be added that this case properly presents no question under Sec. 5 of the ordinance, which, it is argued, discriminates between herd owners within or beyond twenty miles of the city in a manner conflicting with Sayre Boro. v. Phillips, 148 Pa. 482, and similar cases. Without stopping to note the obvious objections to this view, it is to be observed that the record does not disclose as a fact that the herd supplying the plaintiff is kept within twenty miles of the city. If not, the alleged discrimination cannot affect the plaintiff, and he has no standing to object to the ordinance on that ground, both because of the nature of this proceeding above pointed out and because of the principle laid down in Rothermel v. Meyerle, 136 Pa. 250.] (4) But apart from this, Section 5 does not provide for the inspection of herds and premises preliminary to the granting of a license, (which is all we have to do with here,) but for recurring subsequent inspections of premises and a revocation of the license if they be found unsanitary or if permission to inspect them be refused. The point made by plaintiff with reference to the provisions of this section can become pertinent, if at all, only in a case where a license once granted is attempted to be revoked.] (5)
    April 15, 1912 :
    [And now, June 24, 1911, judgment is entered for the respondent that the peremptory mandamus be refused, and that the respondent have his costs.] (1)

      Errors assigned were (1) the order of the court; (2, 3, 4 and 5) findings of fact as above.

      William, Kerper Stevens, for appellant.
    The provision of Section 5 of the ordinance limiting the inspection to the city of Reading and within twenty miles of the city limits discriminates between persons who are engaged in the sale of milk, and is not a police, but a trade regulation, and is, therefore, void: Sayre Borough v. Phillips, 148 Pa. 482.
    Section 5 of the ordinance is void in that it contravenes the express prohibition contained in Section 8 of the Act of May 25, 1907, P. L. 234.

      Henry P. Reiser, City Solicitor, for appellee,
    cited, State v. Nelson, 66 Minn. 166 (66 N. W. Repr. 1066).
   Opinion by

Mr. Justice Elkin,

The questions involved in this case have been so fully considered in the opinion of the learned court below that little need be said here in disposing of this appeal. The validity of the ordinance in question was sustained in Reading v. Miller, 45 Pa. Superior Ct. 28, and we see no reason to disturb the conclusion reached in that case. It is contended for appellant that the ordinance is in effect a trade regulation and not an exercise of police power. This position was sufficiently answered by the learned court below on the authority of State v. Nelson, 66 Minn. 166; and State v. Elofson, 90 N. W. Repr. 309. But it is argued that Section 5 of the ordinance provides, as a condition precedent to the granting of the license, that the applicant must secure the consents of the owners of herds and premises for the purpose of inspection within twenty miles of the city of Reading and need not secure such consents from persons residing beyond the twenty-mile limit. The effect of this limitation, it is urged, is either that no milk purchased beyond the limit can be sold in the city, or that such milk can be sold without an inspection; and, in either event, the result would be unjust discrimination. This construction would, give the section under consideration an effect not warranted by its language and not intended by the municipal authorities. Section 5 imposes the duty of inspection upon the inspector and does not relate to the licensing of applicants to sell milk. It does not provide for the inspection of herds and premises preliminary to the granting of the license; but for the inspection after a license has been granted and for a revocation of such licenses if the premises are found to be unsanitary, or if permission to inspect be refused. We therefore agree with the suggestion made by the learned court below that these “provisions of this section can become pertinent, if at all, only in a case where a license once granted is attempted to be revoked.” Then, again, the record here presented is barren of any facts upon which to raise the question of the duty of the inspector to inspect either within or without the twenty-mile limit. The duty of inspection generally is entirely foreign to the question here involved, which is the right of the inspector to refuse a license to appellant because he has not complied with the antecedent conditions upon which his application depends. The licensing of dealers in and vendors of milk is provided for by Section 6 of tbe ordinance and is dependent upon tbe provisions and requirements of that and subsequent sections, and not upon tbe provisions of Section 5, wbicb relate to tbe duties of tbe inspector after tbe license bas been granted. We agree with tbe contention of tbe learned counsel for appellee that under tbe provisions of Section 6 all premises and herds are required to be inspected before tbe issuance of tbe license without reference to tbe twenty-mile limit. This applies to every owner of a herd who desires to sell milk in tbe city of Reading, regardless of tbe number of miles be may live from tbe city. Tbe ordinance deals primarily with tbe sale of milk in tbe city and tbe inspection of herds is but incidental to this general purpose. Tbe owners of herds cannot be compelled to submit to inspection, but tbe city can say that tbe milk cannot be sold within tbe city without such inspection. It is entirely voluntary on tbe part of owners whether they shall have their herds inspected or not, but when tbe milk is offered for sale in tbe city either by tbe owner, or by a dealer, it is tbe right of tbe city under its police power to say that such sale cannot be made until there bas been a proper inspection, and that no dealer shall be licensed to sell milk from any herd no matter where located without such inspection. Tbe law and tbe ordinance are based upon tbe power of municipalities to protect tbe health of tbe people by providing for tbe sale of pure milk, and such laws have been uniformly sustained by tbe courts. If an applicant can produce tbe written consent of a single owner to inspect bis herd, and tbe inspection of that herd is satisfactory, be would be entitled to bis license, but be could only sell milk from tbe herd thus inspected, and could not under a license thus granted sell milk from herds not inspected, nor from herds, tbe owners of wbicb refused to give their consents to inspect.

Under tbe ordinance involved in this case all applicants are put upon tbe same basis and there is no such discrimination as was pointed out in Sayre Boro. v. Phillips, 148 Pa. 482. That case and the line of cases relied on to sustain it have no application to the facts of the present case. In no proper legal sense can what was done in the case at bar be considered a trade regulation. Under the ordinance all dealers in or vendors of milk in the city are subjected to the same regulations and must submit to the same kind of inspection. There is no discrimination and all are required to obey the provisions of the law intended as a protection to the consumers of milk.

Judgment affirmed with costs.