she furnished the money for all the payments that were made. For the present this question is settled by the verdict. The testimony touching it was submitted under fitting instructions, the pith of which was, "she must show that the property was bought for her; that she had the means to buy with, and that she applied those means in payment of the purchasemoney. And this she must show by evidence at once clear and so full and satisfactory that the jury can rely on it with reasonable certainty." Taking her allegation as true, the title vested in her by a resulting trust, even if the deed was made to her husband. The owner of land is not estopped from setting up his title against judgment creditors, though they had no actual or constructive notice of his title at the time they gave credit or filed the judgment against the occupant. A married woman is not bound to record her deed under pain of losing her land if seized by her husband's creditors. The defendants' third, eighth and tenth points were rightly refused.

Nor is there error in the answer to the fifth point, for it adapted the proposition to the evidence before the jury.The court was not bound to affirm or deny the proposition that, if the wife purchase land and pays for it with her own money, and has the deed made to her husband, there is no resulting trust. It did not arise upon the evidence. And the learned judge may have believed that husband and wife are unequal in power and influence over each other, and that when he claims her property has been vested in him it ought to appear in the circumstances that it was done without undue influence upon his part.

tion was subsequent to delivery of the deed. If the record of the Orphans'

Court failed to show authority in the trustees to make the deed to Rebecca C. Meyers, and for that reason it did not operate as a conveyance to her, it was pertinent testimony, with other testimony, to establish the alleged resulting trust. There is no evidence that the deed appears to have been altered, or that the signatures were forged; but there is testimony that the signatures are genuine, and no appearance of erasure on the face of the deed. the deed. The testimony of Dennis Meyers by no means warrants submission to the jury to find that any word had been taken out and others inserted instead.— The seventh, eleventh, twelfth, thirteenth and fourteenth assignments are not sustained.

It was competent to prove that E. J. Meyers bought the property for his wife, and the testimony constituting the fifth and sixth assignments goes no further.It was confined to the request of the wife to purchase, and to his statement made immediately after the sale that he had purchased for her.

Evidence of the declaration of a party in possession in some circumstances, is admissable in his own behalf to show how he claimed, or the extent of his claim, but not to show that he had paid for the property or that it had been vested in him by deed or otherwise. The offer set out in the eighth assignment was to prove possession and claim of ownership of the property; but testimony was afterwards received that the plaintiff said her money paid for it. In the argument this was treated as if received under the offer, for which reason we note the assignment. The evidence of her declaration respecting payment of money is not within the exception.

Charles Shank had testified that the plaintiff's father came to her house the evening before Christmas, and "handed over to her, a Christmas gift-a roll of something -looked like a roll of money," he was allowed to say that, on the next morning, she said "the Christmas gift her father gave her was $500. No authority has been cited which allows a party to make out a case in that way. Were it permitted a party to prove such declarations he could readily prepare a multitude of witnesses. We are of opinion that it was error to admit the testimony set out in the

ninth assignment, and for that the judg

ment must be reversed.

The only remaining assignment that will be remarked is the tenth. It does not appear by the record, as printed that the defendants objected to the trial or taking the verdict because of the nonjoinder of the plaintiff's husband. Section 39 of the Act of 1850, P. L., 571, provides, that for recovery of any property secured to a married woman by the Act of 1848, suit may be brought in the name of herself and her husband, to her

use; and section 2 of the Act of 1856, P. L., 315, enables her to bring suit alone if her husband has deserted or separates himself from her, or neglected or refused to support her, or she had been divorced from his bed and board. Had the defendants objected, doubtless the court would have heard them. The plaintiff had a right to move to, amend, and still has that right, and would be allowed to do so in this court, under the circumstances, if the cause were not reversed on another ground.

Judgment reversed and venire facias de novo awarded.

Sur rule for a new trial.

This was an action of replevin for a spinning machine. Plaintiff had purchased it from one member of the firm of Chappel & Taylor, who were the defendant's tenants of a mill, and received a bill of sale for the same.

Plaintiff went to the mill to get the machine, but, finding it closed, called upon the defendant, the landlord. Defendant told plaintiff that rent was owing, and he would not let the machine go-that he

held it for the rent.

Taylor, of the firm of Chappel & Taylor, the tenants, then handed the defendant the key of the premises. Before the defendant could get a constable to make formal distress, this replevin issued, and plaintiff took away the machine. Under the evidence the judge trying the cause instructed the jury to find in favor of the defendant, the landlord, for the rent in

arrears.

July 14th, 1883. ELCOCK, J.-The question is, whether a landlord, under a claim for rent, can hold possession of personal property previously sold by the tenant, demanded by the purchaser, but not delivered, and remaining on the premises, unless actual formal distress was made.

Distress is the right to take property for payment of rent, and is so ancient a remedy that its origin has never been traced.

Our Acts of Assembly on this subject do not define it, and merely extend the common law remedy in the cases specified therein, and define a mode of procedure after distress made. The goods of a stranger on the demised premises are alike liable to distress, save those on storage in the way of trade. When the plaintiff made demand for the personal property in this case the landlord replied that he held it for rent, and would not let it be delivered. Was this the commencement of a distress? In Wood v. Nutt, 5 Bingham 10, a landlord to whom rent was in arrear, hearing his tenant and a stranger disputing about the property of

an article on the premises early in the morning, entered and said: "The article shall not be removed till my rent is paid." The stranger, nevertheless, removed the article. On the same day, after the removal, the landlord sent his broker to distrain for the rent.

Held, that the distress was sufficiently commenced by the landlord to entitle him to the article in question. Chief Justice Cockburn, in Cramer v. Mott, L. R. 5 Q. B. 357, says: "there need not be an actual seizure to create a distress; it is enough that the landlord or his agent takes effectual means to prevent the removal of the article from off the premises on the ground of rent being in arrear; and he does this when he declares that the article shall not be removed until the rent is paid."

The same doctrine has been held in Hutchings v. Scott, 2 M. & W. 809, and Swann v. Falmouth, 8 B. & C. 456, and are cited as authority by Taylor's Laudlord and Tenant, § 578. The question has not been authoritatively determined in Pennsylvania, but as the common law right of distress is what exists here, the authorities cited would appear to govern the case. No question was raised but what the article was distrainable, for it was put in the demised premises by the tenant for trade purposes, and was merely fastened to the floor by wooden screws.

If it were part of the realty the plaintiff would have no remedy, because he could not replevin it: Roberts v. Dauphin Bank, 7 H. 71; Overton v. Williston, 7 C. 155.

We see no error in the binding instruction given to the jury on the trial, and the rule for a new trial is discharged.

the 14th of May, 1883, an order was made by Judge Rice that the rule in this case, stood over until the next argument court, with leave to the defendants in the meantime to take depositions. The purpose of this was to ascertain whether the omis sion of the defendants to file the proper affidavit for an appeal was caused by the fault, fraud, or misconduct of the magistrate, and whether the defendants were or were not themselves guilty of laches.

The deposition of J. C. Williamson has been taken. It shows that after calling at the alderman's office during business hours for the purpose of taking an appeal, and finding it locked, he met the alderman in the court house. They went together to the bar office, where the alderman made out a bill of costs, which Williamson paid. Bail was given for the appeal, and the transcript was afterwards forwarded by the magistrate by mail. Mr. Williamson states that nothing whatever was said to him about an affidavit, and had known that the law required it. that he was prepared to make one if he

The alderman is careful to state in his

transcript that the defendants failed to file the required affidavit. This fact is important as showing, first, that the alderman knew that an affidavit was necessary; and secondly, that he failed in his duty in accepting payment of the costs and taking bail for the appeal without apprising Mr. Williamson of the further requirements of the law. This was misconduct on the part of the magistrate, by which the defendants were deceived and misled.

The rule to strike off the appeal is discharged, and it is now directed that the defendants have twenty days in which to perfect their appeal according to law.

Will--Construction of--Testatrix was a widow with three young children. One of the provisions of her will was as follows: "I wish my aunt to take charge of my children, and to receive annually from my estate for her services $500." Held, that on the youngest child attaining its majority the payment of the $500 ceased. -Hewson & Emlen's Appeal, 40 Legal

VOL. IV. THURSDAY, AUGUST 2, 1883.

COMMON PLEAS.

York Water Company v. Glatfelter. Change of Venue-Court Interested-Local prejudice.

Plaintiff filed a bill against defendant, alleging that the defendant had erected a paper mill on the Codorus creek, and had caused noxious substances to flow from said mill and thereby rendered the water unfit for domestic use. Defendant in his answer denied the charge. Defendant filed his petition for a change of venue, alleging that the Court, (or any member of the bar who might be appointed Master or Examiner), was interested in the question to be determined in the suit, being water renters. HELD, not to be sufficient grounds for a change of venue. The question in issue is purely one of fact, and is so abstract in its character that it cannot give rise to any bias or prejudice whatsoever.

The defendant amended his application, and setting forth the list of stockholders of the plaintiff company alleged that a large number of the inhabitants of the county had interest in the question involved therein adverse to to the defendant. HELD, That the mere fact that these individuals were stockholders of the plaintiff company is not evidence of the fact that they have an interest in the question involved adverse to the defendant.

The interest that the stockholders might have by the benefit accruing from pure water, is one that can only arise after it is ascertained that the defendant caused the impurity of the water which is the subject of complaint.

Motion for change of venue.

The answer of the defendant denies that he caused noxious substances to flow into the water of the Codorus creek, whereby, at the place where the pumping works of the plaintiff are located, it is polluted and rendered unfit for domestic use or drinking. This is the substance of the charge in the bill and of the denial in the answer.

The defendant has filed a petition, under the above-mentioned act, praying for a change of venue, alleging that any member of the York Bar, who might be appointed either examiner or master, and the members of the Court, are interested in the question to be determined in the suit. The ground upon which this application is based, is, that as the judges of this court

The case was argued before Judges Wickes and Gibson, and the opinions below are signed by both judges.

V. K. Keesey, for motion. Jas. W. Latimer, contra. July 30, 1883. GIBSON, A. L. J.-The first section of the act of 30 March, 1875, P. L. 35, provides for a change of venue, in any civil cause in law or equity, "whenever the judge who by law is required to try or hear the same, shall be personally interested in the event of such cause or in the question to be determined thereby."

The bill in this case sets out, that in pursuance of a supplement to its charter, the plaintiff, a water company, brought into the borough of York an addittional supply of water from the Codorus creek, by means of expensive machinery, in the year 1850. That the water was then pure. But that defendant has since erected a paper mill on said creek, above the plaintiff's works, and has caused noxious substances to flow from the said mill, and

company, and are renters of the same, they are, therefore, personally interested in the question to be determined by this suit. That question is, whether or not the defendant has caused noxious substances to flow from his paper mill, by which, the water, where the plaintiff's pumps are worked, is polluted and rendered unfit for domestic use or drinking?

This case might present a different aspect, if it was an ascertained and admitted fact that the pollution of the water complained of, was caused by the refuse flow from the defendant's paper mill, and he justified it by claiming a right to such use of the stream. But he denies the allegations of the bill and sets out other causes, in his answer, which may account for the impurity of the water. It becomes, therefore, a matter of judicial investigation whether the matters alleged in the bill are the cause of the pollution of the water supplied by the plaintiff to those who use it, or whether there are other causes. Unless the refuse flow from the