
    Treusdell et al. v. O’Donnell.
    A married woman who has complied with the requirements of the Act of April 3,1872, in regard to separate earnings, may borrow money upon her own credit, and goods purchased with the money borrowed upon such credit are not liable to be seized for her husband’s debts.
    Query, whether, where there is no positive evidence that a married woman borrowed money upon the credit of her separate estate, it is proper to permit the jury to find that it was furnished upon such credit,where the evidence was that she gave a judgment note with waiver of exemption and was possessed of household furniture, but no evidence was given as to its value.
    Feb. 26, 1889.
    Error, No. 186, Jan. T. 1889, to C. P. Lackawanna Co., to review a judgment on a verdict for plaintiff on a sheriff’s interpleader, wherein Ellen O’Donnell was plaintiff and T. B. Treusdell & Co. were defendants, to determine the ownership of personal property levied upon as the property of plaintiff’s husband, at March T. 1888, No. 301. Williams and McCollum, JJ., absent.
    The facts appear by the following charge of the court, by Hand, P. J.:
    “ The evidence in this case is that the plaintiff owned household furniture in her own right; that her husband was sold out by the sheriff, and that then she undertook to go into business on her own responsibility; that she filed her petition for her separate earnings which was allowed by the court; that at that time the only property she had was some household furniture; that she went to Mr. Winton and borrowed $100 and gave him her own note for the same, being a judgment note with waiver of inquisition and the exemption law; that with this money, and $50 which she borrowed from a relative, and $25 or $30 she borrowed from another relative, she purchased goods and opened a store and carried on business, and paid her bills out of the store. That is the evidence in this case. Now, the only point is whether she borrowed this money upon the credit of her estate, that is, upon the credit of her household furniture. If she did, she is entitled to the property she acquired by reason of that credit. If she did not, then she is not entitled to it, and the verdict should then be for the defendants.
    [“ There is no positive evidence in this case that she borrowed this money upon the credit of her estate;, all the evidence is, that she had this estate, and that she gave this judgment note with the waiver in it to Mr. Winton when he loaned her the hundred dollars on her own name. We leave it for you to infer whether she borrowed it on her estate or not, under all the evidence in the case.]
    
      “ If you find from the evidence that you are warranted in concluding she did borrow it upon the credit of her estate, then your verdict should be for the plaintiff. If you find she has not clearly proven she borrowed it upon that credit, then your verdict should be for the defendants.”
    Verdict and judgment for plaintiff.
    
      The assignments of error specified, 1, the portion of the charge in brackets, quoting it; 2, the action of the court in allowing the jury to infer facts necessary to be proven by plaintiff: I. What did the household furniture consist of? II. Value of the same? III. That the money was borrowed upon the credit of her separate estate. IV. That the household furniture was of such value, as to be security in proportion to the credit given; and, 3, in not directing the jury to find in favor of defendants, as there was no evidence that she borrowed the money upon the credit of her separate estate.
    
      J. M. C. Ranck, for plaintiffs in error.
    Goods purchased by a married woman on her own credit, are not her separate property. Robinson v. Wallace, 39 Pa. 133; Leinbach v. Templin, 105 Pa. 526; Blum v. Ross, 116 Pa. 163.
    Her credit is nothing in the eyes of the law; when she does contract, the law esteems her the agent of her husband. Hallowell v. Horton, 35 Pa. 375 ; Leinbach v. Templin, supra.
    A married woman must have a separate estate to protect her purchase upon credit, an estate available, and proportionate to the credit it supports. The purchase must, in fact, be made, not upon her credit, but upon the credit of her separate estate, upon her ability to pay out of her own funds. Gault v. Saffin, 44 Pa. 307; Leinbach v. Templin, supra; Lochman v. Brobst, 102 Pa. 486. And she must affirmatively establish that fact. Blum v. Ross, 116 Pa. 168; Seeds v. Rahler, 76 Pa. 862.
    
      O'Brien & Kelley, not heard, for defendant in error.
    Where a feme covert owns property of value sufficient to serve as the foundation of a credit, direct proof that the credit was based upon it may not be necessary, for the jury may infer that fact from the circumstances surrounding the transaction. Spering v. Laughlin, 113 Pa. 209; Blum v. Ross, 116 Pa. 163.
    Feb. 26, 1889.
   Per Curiam,

Judgment affirmed.

When this ease, and the case of Buch v. Long, supra, page 458, were heard in the supreme court, the case of Orr v. Bornstein, 23 W. N. C. 356, had just been decided, establishing the law as stated in the syllabus to the above case. This case cannot be relied upon, therefore, as a precedent for the point decided in the court below. The supreme court would not reverse, although the instruction might have been erroneous as applied to a married woman who had not taken the benefit of the Act of 1872.  