10. That the said dues and assessments | date and April 4, 1882, aggregating $95.10, paid by the said 'New Holland Turnpike Road the amount of plaintiff's claim; the bridge was Company' to the said 'Farmers' Mutual Insur- burned November 25, 1882, and this suit was ance Company of Lancaster County,' are now brought January 28, 1890. held by the said Farmers' Mutual Insurance Company of Lancaster County,' to wit, the said sum of $95.10, which sum the said company plaintiff has demanded from the said defendant, and the company defendant has refused, and still refuses, to pay. Under these circumstances, the action would be for money had and received, and it is plain that a cause of action arose whenever the defendants had received moneys, which in equity and good conscience, they should not retain. It may be that the plaintiffs were ignorant of their rights "11. If, on this statement of facts, the Court in this respect, until after the termination in this are of the opinion that the said Insurance Com- Court of the action upon the policy, in October, pany, defendant in this case stated, are liable to 1888, but their ignorance of their rights would refund the said amount to the plaintiff in this not stay the operation of the statute. The deaction, then judgment to be entered for the plain-fendants, from the very commencement of that tiff for the sum of ninety-five ($95.10) dol- litigation, set up by way of defence the invalidity lars and costs. But if the Court should be of the of the contract of insurance arising out of the opinion that the defendant is not liable to refund want of an insurable interest. They alleged the same, then judgment for the defendant to be nothing and did nothing inconsistent with this entered with costs. Either party to be entitled | defence, and were in no way responsible for the to take out a writ of error from the Supreme plaintiffs' tardiness in bringing this suit. The Court of Pennsylvania within sixty days after law imposed upon the plaintiffs the duty to know the rendition of the judgment without recognizance or affidavit." 10 Judgment was entered by the Court (PATTERSON, J.) in favor of the plaintiff for $95.10 and costs; whereupon defendant took this appeal, assigning for error this action of the Court. The case was submitted without oral argument. their rights, and it will be conclusively presumed that they did know them, especially as the want of an insurable interest was positively and persistently asserted by the defendants in the previous action. The plaintiffs cannot, therefore, be relieved from the closure of the statute on that ground. There are cases where the plaintiff's rights arise upon the act of the defendant, where he has no monition or warning whatever, either October 26, 1891. CLARK, J. It was set- actual or constructive, which would reasonably tled in Farmers' Mutual Insurance Company v. lead him to suspect that a cause of action existed, The New Holland Turnpike Company, 122 Pa. and where no duty is imposed until such warn37, that the turnpike company had no insur- ing is received. Such are the cases of Lienhart able interest in the bridge in question, which v. Forringer, 1 P. & W. 492; Lichty v. Hugus, would sustain a policy of insurance. For this 55 Pa. 434; Fox v. Cash, 11 Pa. 207; Mitchell reason, in an action upon the policy, to recover v. Buffington, 10 WEEKLY NOTES, 361. But the amount of the alleged loss by fire, the turn-in the case at bar the cause of action was not of pike company failed to recover. Assuming that this character. Whether or not the plaintiffs had upon this ground the turnpike company might an insurable interest was a matter equally within have a right to recover back the premium paid, the knowledge of both parties. was not the action barred by the Statute of Limitations? It is conceded that the insurance was effected "in good faith by both parties" to the contract, and that the entire transaction is "free from any allegation or suspicion of fraud." The turnpike company, no doubt, supposed they had an insurable interest in the bridge, and the insurance company issued their policy under the same belief. When the loss occurred and the question as to the insurable interest arose, it was determined that none existed. If there was no insurable interest there was nothing insured. The agreement to pay assessments was void for want of consideration, and the plaintiff was not bound for the assessments. The policy of insurance was dated January 20, 1871; assessments were paid at various times between that Whether the cause of action arose at the time of the payment of each of the several assessments, or at the date of the payment of the last assessment, or upon the refusal of the insurance company to pay the insurance or to repay the assessments, or at the date of the fire, in any event the Statute of Limitations is a bar to the plaintiffs' recovery. The judgment is reversed, and judgment is now entered on the case stated in favor of the defendant. H. S. P. N. J. L. Steinmetz (John E. Malone with him), for appellants. William U. Hensel, attorney-general (with Mercantile license-Act of April 22, 1846-him J. Hay Brown, E. K. Martin, and George Warehouses in counties from which no sales A. Lane, county solicitor), for appellee. are made. A dealer in tobacco who pays a mercantile license in the county where he resides and where his sales are made, is not liable to pay a mercantile tax in another county where he makes purchases and has warehouses but where he does not make any sales. Under the Act of April 22, 1846, P. L. 489, the license duty applies only to such dealers as are engaged in the sale of goods or have a store or warehouse for that purpose, and it does not apply to a dealer who has only a storage warehouse in the county from which no sales are made. Appeal of Solomon Teller, David Teller, Lewis Teller, and Jacob Teller, trading as Teller Brothers, defendants, from the judgment of the Common Pleas of Lancaster County, upon a case stated, wherein the Commonwealth of Pennsylvania was plaintiff, to determine whether defendants were liable to be assessed for mercantile taxes in Lancaster County. October 26, 1891. CLARK, J. The Teller Brothers, appellants in this case, are dealers in tobacco; they buy leaf tobacco in Lancaster County, where they have warehouses for storage of the tobacco thus purchased; their business in Lancaster, however, is confined to the purchase of leaf tobacco. Their residence is in Philadelphia, where they have their principal warehouses, from which all their sales of tobacco are made. They were assessed by the mercantile appraisers of the city of Philadelphia, for the year 1890, with a license duty of eighty dollars, and the only question now to be decided is, whether or not they are also liable to assessment for a license duty upon their business in Lancaster County. Under the Acts of April 2d, 1821, 7 Sm. 471, and March 4th, 1824, P. L. 32, a duty was laid upon every person who shall deal in the selling" of foreign merchandise; and, by the 3d section The case stated set forth that the defendants of the Act of April 7th, 1830, P. L. 387, these have "been assessed by the mercantile appraiser license duties were graduated according to a of the county of Lancaster for the year 1890, certain classification, based upon the amount of under the Act of April 22, 1846, for the pay- annual sales. By the tenth section of the Act of ment of a license of seven dollars as dealers in May 4th, 1841, P. L. 310, the imposition of leaf tobacco. That said defendants are residents this duty was "extended and applied to all perof Philadelphia, Pennsylvania, where they have sons, engaged in the selling or vending" of all their principal warehouses, from which all their merchandise of whatever kind or nature, whether sales of leaf tobacco, in which they deal, are foreign or domestic. All such" sellers or venders" made. That they were assessed by the mercan- were, in the same manner, classified upon the tile appraisers for said city of Philadelphia, for amount of their annual sales, and were required the year 1890, for the payment of a license of to pay a duty, large or small, according to their eighty dollars as dealers in leaf tobacco. That classifications. A question would seem, subsethey buy leaf tobacco in said county of Lancas- quently, to have arisen, whether a manufacturer, ter and store it in their warehouse there. That who kept a store for the sale of goods of his own they do not, and did not during the said year manufacture, was subject to the duty, and, by of 1890, sell any leaf tobacco in said county of the 11th section of the Act of April 22d, 1846, Lancaster. That their business in Lancaster P. L. 489, it was provided, as follows: "All County is confined entirely to the purchase of dealers in goods, wares, and merchandise, the leaf tobacco. The appeal of the defendants is to growth, product, and manufacture of the United be considered as duly taken from the assessment States, and every person who shall keep a store made by the mercantile appraiser, under the Act or warehouse for the purpose of vending and of Assembly of April 11, 1862. If the Court be disposing of goods, wares, and merchandise, where of opinion that said defendants were lawfully such person is concerned or interested in the assessed, then judgment to be entered for the manufacture of such goods, wares, or merchanplaintiff in the sum of $7.75, but if not, then dise, shall be classified in the same manner, and judgment to be entered for the defendants. The required to pay the same annual tax and license Costs to follow the judgment, and either party fee, as is provided and required in relation to reserving the right to sue out a writ of error therein." The Court (PATTERSON, J.). entered judgment upon the case stated in favor of the plaintiff; whereupon defendants took this appeal, assigning for error this action of the Court. dealers in foreign merchandise: Provided, that mechanics who keep a store or warehouse at their own shop or manufactory, for the purpose of vending their own manufactures exclusively, shall not be required to take out any license." It is contended by the appellee, that the class of persons liable to a license duty was extended Jan. '91, 25. May 19, 1891. Commonwealth v. Bird. Court-Practice. In a proceeding to have the forfeiture of a recognizance in the Quarter Sessions stricken off, the Supreme Court cannot go behind the record for the purpose of inquiring into the merits of the case, because no appeal is given in such cases. The Supreme Court has no jurisdiction of such a case except upon certiorari, and that brings up for review nothing excepting the record proper. the Teller Brothers, although they admittedly Forfeited recognizance-Jurisdiction of Supreme sold no leaf tobacco in Lancaster County, were liable as dealers in leaf tobacco. But, whatever the proper definition of "dealer" may be, it is the statute to which we must look to see what class of dealers were intended. We find by the section of the Act of 1846, above quoted, that these "dealers," as well as those "who keep a store or warehouse," for the sale of goods, etc., "are to be classified in the same manner, and required to pay the same annual tax and license fee, as is provided and required in relation to dealers in foreign merchandise." Now, as we have already seen that all dealers, whether of foreign or domestic goods, are to be classified according to the amount of their annual sales, it follows, of course, that license duty applies only to such dealers as are engaged in the sale of goods or have a store or warehouse for that purpose. It is admitted that the Teller Brothers were not engaged in the sale of tobacco, or any other kind of merchandise, in Lancaster County Their sales were exclusively from their ware house in the city of Philadelphia, where they were not only liable to a license duty, according to their proper classification, but where they have been actually assessed, and are held for payment of the same. It does not appear that any sales are made from their storage house in Lancaster County; the necessary implication from the facts set forth in the stated case is, that the tobacco stored there, if sold at all, is removed to the Philadelphia warehouse, "from which all their sales of the leaf tobacco in which they deal are made." It is clear that the defendants are not liable in Lancaster County to a license duty according to their annual sales made in Philadelphia, or they would be held to the payment of double duty. If it appeared that, although residing in Philadelphia, and having warehouses there, they were engaged in making sales of tobacco which were consummated by delivery from their warehouse in Lancaster County, a different question would, perhaps, be presented, but, under the facts as stated, the defendants are not liable for payment of any license duty in Lancaster County. The judgment is reversed, and judgment is now entered upon the case stated in favor of the defendants. H. S. P. N. of Charles E. Bird and others, from the decree of We and each of us bind ourselves in the sum of five hundred dollars that Charles Bird, William Ruth, Richey that the within defendant shall be and appear William Heberling, James Ruth, Charles Hatt, Jerry at the next Court of Quarter Sessions of the Peace to answer the within charge. Taken and acknowledged CHAS. E. BIRD, RICHARD HEBERLING, ISAAC RUTH, CYRUS S. MILLER, [SEAL.] "That said recognizance was indorsed on the warrant for the arrest of said defendants and was never filed in the office of the clerk of said Court, and only came to the district attorney's hand on or about January 2, 1890, who afterwards pinned it to the return of said case made to the Court by said Reuben E. Shober, Esq., but never marked it filed, and, as we are advised, does not | and not answering, their recognizance was absoform a part of the record to affect the petitioners lutely forfeited. Two weeks thereafter, on apto affect their liability. "That the return made to said Court by said justice of the peace is all in his handwriting, and that the recognizance on said return was never signed by the petitioners and never entered into by the petitioners before said justice of the peace, in any shape, manner, or form, and that the said recognizance on said return was forfeited and respited on January 24, 1889, on April 27, 1889, on June 8, 1889, on August 26, 1889, on January 2, 1890, and absolutely forfeited on January 4, 1890, under objections by A. J. Eberly, the counsel of the petitioners. The petitioners further represent that all said forfeitures and respites made as aforesaid were irregular and are null and void as to the petitioners, and that said forfeiture absolutely does not bind them. "That all proceedings in this case, as far as they relate to and affect the petitioners, are irregular and not warranted by any Act or Acts of Assembly or decision of any Court." The petitioners, therefore, prayed for a rule to show cause why said recognizance should not be respited and the petitioners be discharged; that said forfeitures and respites be stricken from the record so far as they affect the petitioners; and, also, that the absolute forfeiture of said recognizance be stricken from the record in the case so far as it relates to the petitioners; and grant such other and further relief as the petitioners are entitled to in the matter alleged in this petition. and shown by the record. plication of three of the sureties, a rule was granted "to show cause why the forfeiture of the recognizance, etc., should not be stricken off." On August 16th following, the rule was discharged. The only complaint in the several specifications is the action of the Court in thus discharging the rule to show cause, and refusing to strike off the forfeiture. Testing the validity of the acts complained of, as in such cases we must, by the record alone, there appears to be no error that calls for our intervention. We have no right to go behind the record for the purpose of inquiring into the merits of the case, for the reason that no appeal is given in such cases: Bross v. Commonwealth, 71 Pa. 262. We have no jurisdiction of the case, except on certiorari, and that brings up, for review, nothing except the record proper. But if it were otherwise, it would profit the appellant nothing, because, by going outside of the record, it would appear that he and others became bail for the appearance, etc., of five defendants who are now fugitives from justice, and have neither made nor offered to make restitution for the crime of which they were duly convicted, and that the only ground on which appellant claims relief is a bald technicality, utterly destitute of merit. The proceedings of the Court of Quarter Sessions are, therefore, affirmed, with costs to be paid by appellant. It also appeared that defendants were duly tried and convicted, that a motion for a new trial Jan. '91, 374. was made, argued, and refused, and that the defendants were fugitives from justice. The Court (PATTERSON, J.), discharged the Ante-nuptial agreements-Evidence necessary to rule to show cause why the forfeiture should not be stricken off; whereupon Richard Heberling, one of the petitioners for the rule, took this appeal, assigning for error the action of the Court in discharging the rule, and in “ denying motion to respite or strike off forfeiture and refusing to discharge the petitioners." A. J. Eberly, for appellant. William D. Weaver, ex-district attorney, A. C. Reinaehl, district attorney, and Benjamin F. Davis, for appellee, were not called upon. appears set aside Revocation of— Valuable consideration essential. Where an intended wife, who knows her rights and is fully informed of the situation, deliberately releases all her interest in her husband's estate in consideration of an ante-nuptial agreement, there must be two witnesses, or the equivalent, to show that a fraud was practised upon her in the execution of the contract. To revoke an ante-nuptial agreement there must be a meritorious or valuable consideration. The fact that the wife, after having voluntarily estranged herself from her husband because of her dissatisfaction with the ante-nuptial agreement, came back to her hus October 5, 1891. STERRETT, J. It by the record in this case that the recognizance band, is not sufficient consideration for a revocation of of the five defendants and their bail was first for- proceedings for such revocation sufficient considerathe agreement; neither is the abandonment of legal feited on January 24, 1889, and respited until tion. April Sessions of same year. Thereafter it was regularly forfeited and respited from term to term until January 4, 1890, at which time the defendants and their bail were again respectively called, Appeal of Charles M. Lukens and Thomas M. Montgomery, trustees under the will of Henry Kesler, deceased, for Thomas H. Kesler and George Kesler, from the decree of the Orphans' | showed a total of $118,300.00. Before execuCourt of Philadelphia County, awarding to Mrs. ting the settlement both papers were read over Mary R. Kesler one-third part of the personal to the claimant, and she admitted that she was estate of the decedent. satisfied with them. At the adjudication of the account of the executors of Henry Kesler, deceased, before ASHMAN, J., decedent's wife presented her claim for one-third of decedent's personal estate. The facts of the case are fully set out in the adjudication, as follows: "The testator, after devising certain real estate to his son, gave to Thomas Oram $500, clear of tax, and the residue of his estate to his executors in trust, to pay out of the income to his housekeeper, Annie Kendrick, $500 yearly for life, one-third of the balance of income to his son, George Kesler, for life, free of his debts, with authority to pay him at their discretion $6000 out of the principal of said third; and two-thirds of said income to his son, Thomas H. Kesler, free of his debts for life, with like power to pay him $20,000 out of principal; with remainder over to the respective issue of said sons, and with power of sale of real estate to the executors. "The will was dated May 18, 1883. By codicil dated October 6, 1884, he recited a certain marriage settlement and bequeathed $2000 to his wife in addition to the sum secured to her by the said settlement. "By codicil dated August 18, 1885, he directed the trustees to convey to his wife absolutely $15,000, the amount given them in trust by said marriage settlement, and such further sum as would be required to make up the full one-third of his estate. "By codicil October 28, 1887, he revoked both codicils, and gave his wife, in addition to the amount secured to her by said marriage settlement, the further yearly sum of $600 for life or during widowhood. He died June 23, 1888. "This was the case for the estate; and as all the testimony which was afterwards received was strenuously objected to, it may be well to determine whether, at this point, the ante-nuptial arrangement was in legal contemplation complete. The Auditing Judge regards the question as doubtful. "The attitude of the contracting parties required on both sides the amplest disclosure of every fact which could assist the judgment. Perhaps the duty of an ordinary counsel, who had been engaged by the husband, would have been discharged when he had read over to the wife the items which constituted the estate of the husband, and the provisions which made up the settlement, because he might have assumed that neither party was ignorant of the law. But it will scarcely be said that any lawyer engaged by the wife would have stopped at the reading of these papers, and ended his responsibility when he was satisfied they were in due form. These accountants, however, stood as close to the widow as if they had been her attorneys, for they were her trustees. They knew that she was bartering an absolute interest of $36,000 in cash, and a life interest in real estate, for an income of $50 per month, and certainly if they chose to refrain from advising her as to her legal rights, or even from asking her if she had made a single calculation, they might at least have assured themselves that she had received advice elsewhere. They were bound to this by the persuasive fact that they were the paid advisers of the husband; that they had advised him as to the provisions of the settlement, and had actually drafted its provisions; and that just so far as the interest of the husband could be said to be opposed to interests of the wife, they, as the representatives of the husband, were, in a very understandable sense, antagonists of the claimant. "The widow elected to take against the will. Her eligibility to elect was, of course, barred so long as the marriage settlement stood; and in support of the settlement it was shown that the "The importance of these suggestions as to claimant, at the age of about 30, a widow and the duty of counsel is instantly apparent when possessed of little, if any property, was engaged the conduct of the husband is considered. He to be married to the testator, who was 73. Two had persistently assured the claimant that the days before the ceremony she went with the tes-provision by way of settlement was a gift entator's daughter, at the testator's request, to the tirely independent of her share in his estate, and office of these accountants, who were the legal was intended to meet her immediate necessities advisers of the testator, and she there executed the settlement. The paper was in formal shape, and set apart $15,000, in the hands of the accountants, in trust to secure the payment of an annuity to the claimant of $600, commencing at the decedent's death. It was accompanied by a schedule of the decedent's property, which designated the several investments and included a piece of real estate valued at $9000, and it in case of his death or of a difficulty with his family. With this preconceived misunderstanding of its meaning, she listened to the reading of an instrument which is as remarkable as the will for the extent of its verbiage, and gathered from it, if she gathered anything at all, that she was to receive $600 per annum, exactly the amount of the gift which her husband had told her she would receive. A single word from her |