jury Estreuth appeared with his witnesses on the ground of fraud and absence of but the grand jury ignored the bill and consideration, it is competent for the dedirected him to pay the costs of prosecu- fendant, claiming under a deed from her tion. We are now asked to set aside this grantee, to show that she designed her finding and direction of the grand jury deed for the benefit of an insolvent son, and to place the costs upon the county. and made it to the defendant's grantor The only reason suggested for such a to protect the insolvent from claims of his disposition of the matter is that the com- creditors. The facts, that, owing to her mitment of the defendant was the action surroundings and the insolvent son's relaof the Court. Undoubtedly the commit- tions to her, she was in a position where ment of the defendant was the action of she might be subjected to undue influence, the Court, but this action was brought that she was an aged and infirm woman, about by the evidence adduced by Mr. and that the consideration was not truly Estreuth and on his motion. He was the expressed in the deed, would seem to prosecutor and we do not see how the cast on the defendant the burden of provgrand jury could well find otherwise. ing the fairness of the transaction, and We are not permitted in an arbitrary way that she acted upon her independent to interfere with the disposition made by judgment.-Kyte v. Kyte, (Luzerne C. juries of the costs in cases of this kind. P.) 8 Kulp 1. The rule is discharged.

Abstracts of Recent Decisions.

(Cases not otherwise designated are Supreme Court cases.)

Hawking and peddling-Act of April 17, 1846, P. L. 364, unconstitutional.The agents of a New York corporation who sold from house to house for their company, the household goods manufactured by it, and also took orders by Conveyance- Alleged fraud-Evidence sample, were arrested under the Pennsyl-Where a grantor in a deed is mentally vania Act of 1846, prohibiting hawking competent, and signs her name with full and peddling. Held, on habeas corpus, knowledge of the contents of the instru- that the prisoners should be discharged, ment and consciousness of what she is said Act being repugnant to the powers doing, and of the effect of her act, and of Congress to regulate inter-state comafterward acknowledges it to be her act merce.-Commonwealth v. Mooney et al., and deed, the fact that her son took hold (Lancaster C. P.) 12 Lancaster Law Reof her hand to steady or even guide it-view. her physical infirmity making this neces- Landlord and tenant-Liability for resary-while proper to be considered upon pairs.-Damages suffered through want the question as to whether it was her de- of repairs can not be set off against rent liberate and unconstrained act, will not, in arrears, where the landlord had not of itself, invalidate the signature. De- agreed to repair. The defendant leased livery of a deed is necessary to pass title, from the plaintiff the first floor and basebut no particular ceremony is required, ment of a building in New York City, and it is often a question of intentions, agreeing "to make repairs (not made and where a deed is not intended for the necessary by fire) requisite to preserve benefit of the grantee named therein, nor the premises in good condition, such reactually delivered to him, but placed in pairs to be equal to the original in class the hands of a person intended to be and quality." On suit for rent in arrears, beneficially interested, and the grantee the affidavit of defense set forth as a set acquiesces in the use of his name by sub-off, damage to defendants' stock of goods sequently executing and delivering a deed stored in the basement by water, owing to the beneficiary, no other delivery to to the faulty construction of the sewer the first grantee is necessary. A state- connection, which plaintiff refused to ment of consideration, where there was remedy, and that under New York laws actually none, or a wrong statement of the consideration or other suspicious circumstances, may shift the burden of proof from the party attacking the deed to the one sustaining it. In a bill by certain heirs of a grantor to set aside her deed,

such set off was not allowable. Held, that such set off was allowable under New York or Pennsylvania laws and the affidavit of defense was insufficient.— Plummer v. Shulmyer et al., (Lancaster C. P.) 12 Lancaster Law Review 217.

York Legal Record. favor of plaintiff and against defendants

COMMON PLEAS.

Krug v. Walter et al.

Justice-Jurisdiction-Set-off.

No. 2.

for eighty-six dollars and thirty-five
cents, and costs of suit.

Stewart, Niles & Neff for exceptions.
C. J. Delone, contra.

June 18, 1895. BITTENGER, J.-This is a certiorari to Barton H. Knode, Esq., a justice of the peace of Hanover. The exceptions to the proceedings go to the On a certiorari to a Justice of the Peace, the jurisdiction of the justice, by reason of defendant claimed that the subject matter for the demand in this suit being the subject which plaintiff had sued should have been presented as set-off in a previous suit brought by of set off in a suit previously brought by the defendant before another justice against the J. F. Walter, one of the above named depresent plaintiff, and not having been so pre- fendants, against Rufus Krug, the plainsented the Justice in this suit had no jurisdic- tiff in this suit, before L. D. Sell, Esq., tion. The proceedings before the Justice in the

second suit showed no plea to the jurisdiction, another justice of the peace, in and for no transcript of the former suit was produced the Borough of Hanover, in which suit before the justice, and no testimony was pre- said Rufus Krug appeared, and did not sented to the Court on the argument of the ex- set off his claim and demands, as required ceptions to show that plaintiff's demand was really a cross-demand which was a legal subject by the act of March 20, 1810. of set-off in said action. HELD, that the excep tions must be dismissed and the judgment affirmed.

The Court cannot assume, in the absence of

evidence, that the demand sued upon in the second suit was in existence on the day of the hearing in the first suit.

Certiorari.

The Justice's transcript was as follows: Rufus Krug v. John Walter and J. F. Walter. Before Barton H. Knode, J. P. Demand in assumpsit.

Plaintiff claims $105.50 for goods sold and delivered and account rendered.

November 27, 1894, summons issued, H. A. McKinney, constable, returnable December 4, 1894, between the hours of 9 and 10 a. m. on said day.

November 27, 1894, summons returned, H. A. McKinney, constable, on oath, as having served same by producing the original summons to the defendants and informing them of the contents thereof on the 27th day of November, 1894.

Section 7 of said act, so far as applicable, is as follows: "A defendant who shall neglect and refuse, in any case, to set off his demand, whether founded on bond, note, penal or single bill, writing obligatory, book account or damages of assumption, against a plaintiff which shall not exceed the sum of one hundred dollars, before a justice of the peace, shall be, and is hereby forever barred from recovering against the party plaintiff, in any after suit."

In White v. Johnson, 2 Ash. 146, Judge King states the law, under this act, as follows: "The only safe doctrine to hold is, that whenever a plaintiff, bonafide, and without fraud, has sued out process before one justice against a defendant, for the recovery of a legal demand arising from contract, it is not competent for such defendant to commence an action before the same or any other justice, for any cross demand he may have against the plaintiff, which is the December 4, 1894. plaintiff appeared legal subject of a set off in the original at hour named, C. J. Delone, Esq., for action; and this either before or after plaintiff; John Walter, and one of the de- service of the process in the first suit infendants, appeared, Philip J. Barnhart stituted. The true and only right the for said John Walter; J. F. Walter, did defendant claiming to have such set off, not appear; five witnesses sworn for has, is to present it for the decision of the plaintiff; defendants offered no testimony, justice on the hearing of the suit." but cross-questioned plaintiff's witnesses. After hearing, decision reserved until Saturday, December 8, 1894, at 10 o'clock a. m.

Where the requirements stated in the above decision are disregarded, by the institution of a second suit, on the part of the defendant in the first action, whose December 8, 1894, 10 o'clock a.m., set off is, by the act brought within the after investigation, judgment publicly in jurisdiction of the justice before whom

the first suit was brought, the justice The exceptions are dismissed and the before whom such second suit is brought judgment of the justice is affirmed.

is without jurisdiction, and his judgment

in favor of such plaintiff, will be held void, C. P. of upon it being legally made to appear that

the justice before whom the first suit was Interest of recognizor where he accepts pur

Two judgments were entered against Jacob Nathan Grubb. They were assigned to Catharine Grubb, who issued the execution upon which the farm was sold.

and after her death the principal to be brancer by some act or reservation on his paid to the legatees named in the will of part susceptible of clear proof: Updegrove said Silas Grubb. v. Updegrove, 1 Pa. 136. When the money was loaned on the Catharine Grubb judgments there was nothing upon the record to indicate an intent on the part of the recognizer to interfere with the operation of the law. The lender had the right to consider the interest of Jacob Nathan extinguished. It merged in his title to the land and was bound by the lien of the judgment. The subsequent assignment to Longaker could not disturb the rights of the prior lien creditor.

A third judgment was entered later in favor of John H. Longaker, and as additional security Jacob Nathan Grubb assigned his interest or share in the two thousand dollars dower fund to the said Longaker.

Under these facts the question is raised In Hollenberger v. Yaukey, 145 Pa.. whether anything passed by the assign- 179. partition proceedings were had in ment to John H. Longaker. Catharine the Orphans' Court under and in purGrubb, the holder of the two earlier judg- suance of the will of Jonathan Foreman, ments, contends that the share of Jacob which directed that his two farms should Nathan in the dower fund was extin- be appraised, and that when the youngest guished by operation af law when he ac- son should arrive at the age of ten years cepted the farm at valuation. his son Samuel should have the privilege Where the lands of an intestate are of taking one of the farms at the appraisedivided by proceedings in partition, the ment and his son Daniel the privilege of interest of a recognizor in the valuation taking the other. Samuel took the farm fo his purpart, the one-third of which and entered into recognizance conditioned constitutes the amount of the recogniz- to pay the interest on one-third of the ance in favor of the widow and the heirs, is extinguished by operation of law: Reigh v. Seiger, 2 P. & W. 340; Dech v. Gluck, 47 Pa. 403. He has no lien on his own land for any portion of the money payable at the death of the widow; Duey v. Clemens, 1 Pa. 118.

We do not see how the will in the case before us preserves the lien in favor of the recognizor for his share of the two thousand dollars. The proceedings in partition followed the usual course taken in cases of intestacy. The will directs that two thousand shall remain in the farm as a dower. The recognizance states that the two thousand shall remain as a dower, and be paid out directly to the heirs upon the death of the widow. The heirs and executors were all parties to these proceedings, for the sons of Jonathan, Nathaniel and Jacob Nathan were named as executors. The bequests made to the widow for life were to be settled by the executors. If they saw fit to settle and divide the money as designated in the recognizance, with the consent of the heirs or legatees, we do not see how any one can disturb this agreement.

It is true the encumbrance might have been kept alive in favor of the encum

valuation annually to the widow, and at her death the principal sum to the legal heirs of said Jonathan Foreman, deceased, "as per his last said will and testament, including the recognizor." The will provided that one-third "should remain in the land for dower." This case differs from the one before us only in the proportionate share given to the widow to remain as a dower in the land.

It was held that Samuel's share or interest in the recognizance, though by its terms not payable until the death of the widow, was by operation of law at once paid, and so much of that recognizance as was his was absolutely extinguished.

In Dull's Estate, 137 Pa. 116, a mortgage was given by an heir to pay the interest thereon to the widow and the principal at her death to the eight children, of whom the mortgagor was one. The purchaser at sheriff's sale took the property discharged from that share of the mortgage coming to the mortgagor.

The conclusions in these cases result from the principle that merger follows by operation of law where it is in the interest of the owner of the fee and his intent to have a merger, in the absence of any

thing to the contrary, will be presumed distribution of $1,349.46. George J. because of his interest. It is to the inter- Parker was appointed Auditor to make est of the owner of land to hold it di- distribution and filed his report March vested from encumbrance of every char- 12th, 1895.

acter.

A statement of all the other facts of If the assignment of the dower interest which a knowledge is necessary in order antedated the entry of the Catharine to determine the points in controversy, Grubb judgments, the assignee would stand in a better position. It would be inequitable under the facts to allow the owner of the property to take away from the prior lien creditor for the purpose of satisfying the later debtor.

is contained in the following admissions and agreement by the parties to this controversy which were made before the auditor and reduced to writing, to wit:

"It is admitted that James Carpenter died December 10th, 1893, intestate and left to survive him a widow, Hetty Car

We submit the following distribution under the foregoing opinion and agree-penter, and one child, James B. Carpen

ment of the parties:

Amount for distribution

To N. B. Grubb, administrator, $9.65
Nathaniel B. Grubb,

Jonathan B. Grubb,

Mary Johnson,

Catharine Halteman,

8.30

8.30

8.30

ter, and A. M. Carpenter and S. L. Car$412.25 penter, brothers, and Margaret Lash, Martha Kneiper and Balinda Sellers, sisters, and a deceased sister, Amanda Moorhouse, who died intestate and left 8.30- 42.85 to survive her six children, to wit: Alma Weaver Miller, Milton A. Weaver, Sol. H. Weaver, Henry A. Weaver, Sarah J. Stutsman, and Charles M. Monahan; and a sister, Arabella Good, who died intestate and left to survive her one child, Clayton Good.

Catharine Halteman, execution creditor, the balance,

$369.40 Judgment is entered upon the case stated in favor of the above named distributees.

O. C. of

ORPHANS' COURT.

Juniana Co.

"It is also admitted that Hetty Carpenter, the widow, and James B. Carpenter, the son of the decedent, executed and delivered an assignment of all their interests in the estate of the decedent, saving Carpenter's Estate. and excepting $200, to J. N. Keller, W. Decedent's Estates-Right of murderer to H. Sponsler and J. C. Bucher. It is also inherit-Act of April 8, 1833, construed. admitted that James B. Carpenter was Where a widow has been convicted as accesconvicted in the Oyer and Terminer of sory after the fact, and a son of having murdered Juniata county of the murder of his father, his father, for the purpose of getting immediate on February 12th, 1894, and was exepossession of his estate. HELD, that the widow and the heir can inherit from the ancestor whom they murdered.

The Act of April 8, 1833, is to be understood in accordance with the plain and natural meaning of the words. The Legislature has the power to determine and declare the rules of public policy. Courts have no right to arrogate to themselves a wisdom superior to that of the Legislature and interpret and construe an Act of Assembly so as to give it a meaning which the plain and unmistakable words used in the act would not convey, and they are not at liberty to engraft exceptions on a statute where the Legislature has made none.

Exceptions to report of Auditor.

F. M. M. Pennell was appointed administrator of the estate of James Carpenter, deceased, on December 16th, 1893, and filed his first final account of said administration on November 17th, 1894, which showed a balance in his hands for

cuted on June 14th, 1894; that his mother, Hetty Carpenter, the widow, was acquitted of being an accessory before the fact on April 23, 1894, and was convicted and sentenced in the same court as an accessory after the fact to the murder aforesaid, on April 23d, 1894.

"It is also agreed that the auditor shall take the entire record of the trial and conviction in the Court of Oyer and Terminer including the stenographer's notes of evidence, and determine from the evidence therein contained the motives which prompted James B. Carpenter to murder his father and the motives which induced Hetty Carpenter to become an accessory after the fact. The findings of fact of the auditor on this subject to be conclusive."

In pursuance of this agreement and