otherwise, does not make the property Stock- | does not follow for that reason only that it berger's, and the creditors have no right to seize ceased to be her business. She might be the upon and sell it as the husband's property. Affirmed. Defendant requested the Court to charge the jury, inter alia, as follows: : That if a married woman gives her personal property to her husband for use in his business, and without any agreement for the return of the same, and to afford him credit before the world, and he uses it in carrying on business in his name with her knowledge and acquiescence, then she cannot set up separate ownership in herself to the injury of his creditors. Answer. "Applied to the facts of this casethat is regarding the use by the husband of such articles as the wife owned before the alleged connection of the husband with the brewery and saloon business-this proposition cannot be affirmed. It is negatived. Instruction on this point is found in the general charge." "That the plaintiff having tesified that she transferred the saloon license to her husband and permitted him to carry on that business and the brewery business in his name, because it looked better in his name than hers, and it being shown that malt was purchased in his name, shipped to him, and used in a business carried on in his name, all with the knowledge and acquiescence of the plaintiff, then as a matter of law the beer levied on is the property of the husband and the verdict so far as it is concerned must be for the defendant." Refused. "That as a matter of law the use of personal property belonging to a wife by her husband as his own and with her approval and consent is sufficient to raise a presumption of a gift to him of such personalty so used." Answer. "I cannot affirm that a married woman can lose her title to, nor be presumed to have parted with, personal property clearly her own, by reason of the facts here stated. The point is negatived.” owner of the business and yet he might do all this in his own name with the understanding that the same was so done simply as a matter of convenience, and if so done such fact alone would not destroy her right to the proceeds of the business." Verdict for plaintiff and judgment thereon. Defendant thereupon took this writ, assigning for error the answers to his points and the portions of the charge of the Court above set out. Edw. Harvey (W. H. Glace, with him), for plaintiff in error. Where the wife permits her husband to receive the profits of her separate estate, the presumption is that it was the intention of the wife to make a gift of the profits to the husband. McGlinsey's Appeal, 14 S. & R. 65. If a married woman owing property allows her husband to receive it, and to use it in business or mix it with his own in such manner that her property cannot be identified or separated from the general mass, she will lose her right in said property as against her husband's creditors. 2 Perry on Trusts, § 678, p. 289. J. D. Stiles (H. G. Stiles and S. S. Duffy with him), for defendant in error. March 3, 1884. THE COURT. The fact that a husband acts as agent for his wife in buying without her consent transfer her property to and selling, and investing her money, does not him. The purpose of the Act of 1848 is to protect a married woman in the enjoyment of her separate property. It is not necessary that her property be exclusively in her own possession. It may be in the concurrent possession of herself and her husband without causing a forfeiture of her right of property. (Holcomb v. Peoples' Savings Bank, 11 Norris, 338.) In the present case, the evidence fully justiThe Court charged the jury, inter alia, as fol-fied the submission to the jury. We see no lows:error in the charge nor in the answers to the points. Judgment affirmed. PER CURIAM. "Counsel for defendant has asked the jury to say that Mrs. Stockberger, though she was the owner of this property, permitted her husband to use it as his own and carry on business with it; that thereby she lost title, or that it is to be presumed that she made a gift of it to her husband. The point is well worthy of consideration, but I say to you that she could not thus lose the title of those articles." "The fact that the husband had the license in his own name, had his name on the sign, gave notes and checks, and bought malt in his own name, is some evidence tending to show, if it was with her consent and knowledge, that it was his business and not hers. But it T. R. Oct. & Nov. '83, 99, 100, 101. Hommel v. Lewis. and charged against John Fritz only. October 30, 1883. with nothing to ear-mark or distinguish the materials, in these cases, as furnished upon the credit of Hommel's building, are prima facie evidence that said materials were furnished upon the personal credit of John Fritz." Mechanic's lien-Materials-Contractor-Credit of the building-Competency of witnessesAct of April 15, 1869. Whether materials are furnished on the credit of the building or that of the contractor is a question for the jury. The statute conferring the lien does not make it necessary for the plaintiff to allege in his claim or prove affirm atively (in the absence of evidence to the contrary) that the materials were furnished on the credit of the building. The fact that the materials are charged on the plaintiff's books to the contractor alone is not prima facie evidence that they were sold on the individual credit of the con tractor, and not on the credit of the building. Where the plaintiff dies during the pendency of the suit, and his administrator is substituted, the contractor being a defendant and a party in interest is not a competent witness. Error to the Common Pleas No. 2, of Allegheny County. (2) "That under the evidence in this case the jury must find in favor of the defendant." (6) "That a material man in order to obtain a lien upon a building must furnish the materials upon the credit of the building for which they were contracted, and the burden of proof is upon him to show that the materials were so furnished." (7) "The owner of a building, or rather the building itself, stands in the light of a surety for the contractor, and hence if the jury believe that the plaintiff sold the materials in the case to Fritz, the contractor, upon a contract for cash or quarterly payments, and afterwards without the consent of Hommel, the owner, or his knowledge, the plaintiff took Fritz's promissory note for the said materials and negotiated it, and thus extended the time of payment to Fritz he thereby released the surety, to wit, the building and its owner, and he cannot recover against the defendant Hommel." The Court did not read these points to the Scire facias sur mechanic's lien, by William M. Lewis against John G. Hommel, owner, and John Fritz, contractor. Pleas, nunquam indebitatus, payment, and that the goods were not fur-jury, nor answer them except as indirectly by its nished on the credit of the building. The plaintiff died before trial, and his administrator was substituted. general charge, and further instructed the jury that all points, not answered in said charge, were refused. (1st, 2d, 6th, and 7th assignments of error.) : was On the trial, before KIRKPATRICK, J., the following facts appeared: During the summer and It further charged, inter alia, as follows:fall of 1881 John Fritz, a contractor, bought "But it is claimed by Mr. Hommel, through lumber from William M. Lewis; Fritz had agreed his counsel, Mr. Pier, that this material to build three houses for John G. Hommel, and furnished upon the credit of Fritz alone. If the materials purchased from Lewis were used in you find this to be the fact (and that this is the their construction. The plaintiff took from the fact, it devolves on Mr. Hommel to satisfy you contractor a negotiable note for the balance, in regard to) then of course there can be no reexcept a small sum of $45 remaining due at covery. If when a contractor comes to a material their settlement when the buildings were finished, man and says to him, 'Now I don't want you to and had this obligation discounted at the Alle-charge this against this building unless you cannot gheny National Bank. This note, however, not being paid at maturity, the plaintiff filed an apportioned mechanic's lien against the three houses for the sum of $454. The defendant offered to prove by John Fritz "that the materials entering into the buildings, against which these liens are filed, were furnished upon his (Fritz's) individual credit, and not upon the credit of the buildings." Objected to, for the reason that Fritz was a defendant and therefore an incompetent witness. Objection sustained. Exception. (Ninth and tenth assignments of error.) The defendant requested the Court to charge: (1) "That entries made upon plaintiff's books of account showing all materials, in these cases, give the materials on my own strength and your own knowledge of me, although it goes into the building,' and the material man says, 'I take you; I know you; you have been dealing here for years with me; I will not look to the building,' then, of course, there can be no recovery, because he sells the lumber on the faith of the contractor. But this must be established to your satisfaction. As I understand it, there is no question that the lumber went into the building." (Third assignment of error.) "If you have the proper parties; if you have the proper description of the building; if the lien has been properly entered within six months and the jury are satisfied that the materials went into the building and were used by it, I say to you that all the requirements of the law have Dickinson College v. Church, supra. been fulfilled, and the plaintiff, if there is nothing | from testifying, and ought to have been admitted else to prevent, is bound to recover. As it is as a witness. unnecessary to assert in the lien, according to the statute, that it was done on the credit of the building, it follows, as a matter of course, that it is not necessary to prove it, and so I say to you." (Fifth assignment of error.) "It would seem that some time within six months, admittedly not beyond that period, in order to raise money, they being hard up, they went to Fritz (according to Mr. Morrow) and got from him a note for a certain amount, payable in three months, put it into the Allegheny National Bank, had it discounted; it was protested at maturity and they had to lift it. Now, notwithstanding all this, if you can discover from the testimony that this was taken in payment, that would release Mr. Hommel, the defendant. But this, like the other defence, that has been suggested, devolves upon defendant Hommel to show to your satisfaction. He really is bound, and he must establish it to your satis- of error.) Verdict for the plaintiff and judgment thereon. Whereupon the defendant took this writ, assigning for error the action of the Court in excluding the testimony of John Fritz and the answer to defendant's points as contained in the parts of the charge above cited. William S. Pier, for the plaintiff in error. The evidence of the books alone, in the absence of countervailing proof, was sufficient to show that they were sold on the personal credit of the contractor. McMullen v. Gilbert, 2 Wh. 278. The right of the plaintiff to recover does not rest on the fact that the materials went into the building. Hinchman v. Graham, 2 S. & R. 171. Odd Fellows Hall v. Masser, 12 Harris, 510. It is a well-established principle that a creditor releases the surety when he enters into a binding contract, without the surety's consent, to extend the time to the principal debtor. Spackman v. Caldwell, 3 Phil. Rep. 375. Harbison (Burleigh with him), for defendant in error. It is not by the statute made necessary that the sale and delivery of materials be charged in a book of original entry. Wolf v. Batchelder, 6 Smith, 89. Van Billiard's Adm. v. Nice et al., I Grant, 235. Reinoehl & Merly v. Arentz, 1 Pearson, 503. The acceptance of a note by the material man raises no legal implication that the time for the original debt is extended. Kingsley v. Buchanan, 5 Watts, 119. Shaw & Leigh v. The 1st Associated Ref. Pres. Weakley v. Bell & Stearling, 9 Watts, 273. Haworth et al. v. Wallace & Lyon, 2 Harris, 120. January 7, 1844. THE COURT. There was no question on the trial that the materials claimed were actually furnished for, and entered into the construction of the building. This was averred in the claim of lien filed and in the affidavit of claim, and was not denied in the affidavit of defence, and, by rule of Court this constitutes an admission of the material averments of fact. The learned Judge of the Court below charged the jury that if the materials were furnished on the credit of the contractor there could be no recovery, and left that question for them to determine, saying that it rested upon the defendant to make that proof. He also told them that it was not necessary for the plaintiff either to allege in his lien, or to prove affirmatively, that the materials were furnished on the credit of the building, that the statute conferring the lien made no such requirement. In all this there was no error. Of course it must be true as a fact that the materials were furnished on the credit of the building, but when a plaintiff complies with all the provisions of the Act, he has done all that the law requires and is entitled to recover, unless it has been shown that for some sufficient reason he is not so entitled. It was contended on the part of the defendant that the materials were charged to the contractor on the Dickinson College v. Church, 1 W. & S. 462. plaintiff's books, and that this was prima facie John Fritz, the contractor, was not within the evidence that they were sold on his credit only, common law rule excluding parties in interest | and further that this presumption, unless contro Baylies on Sureties and Guarantors, 240. Hill v. Witmer, 2 Phil. Rep. 72. The material man must make his election; he cannot pursue the contractor and the builder together. verted by other evidence would become conclu- [ not succeed in convincing them that the materials sive against the plaintiff and prevent any re- were furnished on the credit of the contractor covery. The defendant's point to this effect was not answered specifically, but it was substantially negatived in the general charge, and as we think with entire correctness. If affirmed it would result in this, that the mere circumstance that the materials were charged to the contractor would itself create a presumption that they were furnished on his credit only and that unless that presumption was rebutted by affirmative proof to the contrary it would become conclusive and debar a recovery by the plaintiff. This is certainly not the law and no authority has been cited which so decides. The proposition and the argument in support of it overlook entirely the effect of the facts that the materials were furnished for or about the construction of the buildnished for the building, were delivered for the purpose of being used in its construction, and actually entered into and formed a part of its erection, and also that there was subsequently, and within six months, filed of record a claim of lien against the building for the materials so used, and it was asserted therein that they were furnished on the credit of the building. These facts are not only evidence of an intent to charge the building, but they are so conclusive upon that subject that the statute declares that the other formal requirements being complied with, they will confer a lien against the building and the ground upon which it stands, which may be enforced against the will of the owner. The statute does not require either that the materials shall be charged against the owner, or that the claim of lien shall assert that they were furnished on the credit of the building, or that affirmative proof shall be made that such was the fact. Of course if the articles were charged against the contractor alone, it is some evidence though slight only, that they were furnished on his credit, and of this the defendant had the full benefit under the charge of the Court which left the whole question to the jury. alone and the verdict was therefore against him. Certainly it would not have been proper for the Court to say as matter of law, that when the plaintiff had absolutely proved every fact which under the statute entitled him to recover, he was nevertheless prevented from recovering because he had not done something which neither the statute nor any decision required him to do, to wit, charge the goods on his books to the owner. In Wolf v. Batchelder (6 P. F. S. 87), STRONG, J., said on page 88: "It is not by statute made necessary that the sale and delivery of materials should be charged in a book of original entries, any evidence that satisfies a jury they were furing is sufficient. To the inquiry whether there is a lien or not it cannot therefore be essential in what manner the sale and delivery of the materials were charged at all;" again, "It has been decided that the charges may be made against the contractor without any reference to the owner or the building (Church v. Allison, 10 Barr, 413), though in such a case there must undoubtedly be other proof that the materials were furnished for the building." In the present case it was alleged in the lien filed and in the affidavit of claim that the materials were furnished for the building and were used in the construction thereof and of this fact there was no denial. Under the rule of Court this absence of denial was an admission of the fact that the materials were so furnished and used, and no further evidence on that subject was necessary. From these facts the inference arises that the materials were furnished on the credit of the building, because by the express provisions of the statute a lien is conferred by the mere furnishing of materials "for or about the erection or construction of the same." Of course this inference or presumption may be rebutted by proof that in point of fact they were not furnished on the credit of Further than that it would not have been pro- the building, as was also pointed out by Judge per for the Court to go upon this one feature of STRONG in the opinion above quoted. Thus on the case. No witness testified that the goods p. 89 he says: "The jury were instructed to were sold to the contractor on his own credit find from this evidence whether the materials alone. The fact that there were continuous deal-went into the building, and whether they were ings between the plaintiff and the contractor in the furnished on the credit of the building. They same line of goods was some evidence, which the defendant was permitted to use in support of his theory; the giving of a note was also allowed to be proved though it was of no weight whatever, as it was not received as payment, and beyond this we can see nothing whatever in the case tending to establish the defendant's view. The defendant was afforded by the charge a full opportunity to make the best use he could of the facts relied upon, with the jury, but he did were told it was unimportant in what mode the books were kept; that the material-man had a right to say that he had furnished the materials on the credit of the building (even though no reference was made to the building in his books) unless he had agreed not to do so, or had been forbidden to do so by the owner. They were still to determine from the evidence whether the plaintiff had been so forbidden, or had so agreed, or whether with or without any understanding he did furnish the materials charged for, on the credit or security of the building. In this we | $500, drawn by W. H. Dewees to the order of see nothing of which the defendant can right- the defendant, indorsed by him, and discounted fully complain." This reasoning disposes of the by the plaintiff. present case. There was no testimony what- On the trial, before GREEN, J., the following ever that the plaintiff had been forbidden by the facts appeared: W. H. Dewees applied to the owner to furnish the materials on the credit of Miners' Trust Company Bank to have a note the building or that he had agreed not to do so. dated April 10, 1868, for $500, payable five The circumstance that the goods were charged to days after date, discounted, offering as collateral the contractor, although it has some significance, 200 shares of the capital stock of the " Pennsylis not at all sufficient to outweigh the statutory pre-vania Building Block Company," of the par sumption that they were furnished on the credit value of $25 per share, on which $3 per share of the building because they were furnished "for or about the construction of the same." And hence the jury were warranted in finding for the plaintiff in this branch of the case. was paid in. Jacob Huntzinger, the president of the bank, refused to discount the note unless it was indorsed. Dewees then applied to McCamant to become an accommodation indorser, In Van Billiard's Admr. v. Nace (1 Grant, who replied that he did not think that Huntzin. 235), it was expressly decided that it was not ger would accept him, as he was not responsible. necessary to prove that the sale was made on Dewees answered that the indorsement was the credit of the building. These considerations merely a nominal one, and that he had collatedetermine the first six assignments of error. As ral. McCamant alleged that upon offering himto the seventh and eighth it is only necessary to self to the bank as indorser he informed Huntsay that it was proved by the defendant's own zinger that he was willing to indorse the note, testimony that the note in question was not but that he was not worth one dollar, and Hunttaken in payment of any part of this debt, and zinger replied, "The collateral is sufficient.” hence it was of no consequence in the case. On the other hand, Huntzinger denied that any The ninth and tenth assignments relate to the such conversation had taken place, but claimed exclusion of the contractor as a witness, as he to have agreed to discount upon the strength of was a defendant and the plaintiff was an admin- the indorsement, well knowing that the collateral istrator. The Act of 1869 had no application, was worthless. Upon receiving notice of proand Hommel's release of costs to Fritz was no test, on April 18, 1868, McCamant called at the better than waste paper to render him compe-bank and notified Huntzinger to proceed against the maker and the collateral, or to allow him to do so, but upon this point also the testimony was conflicting. It was proved that the stock held as collateral could have been sold at any time within two years after the note was made, and more than enough realized from such sale to cover the value of the note. In July or August, 1876, the Miners' Trust Company Bank made an assignment for the benefit of its creditors, and the assignees held the said stock among the assets of the bank until December, 1879, when it was sold for one dollar to themselves. The defendant requested the Court to charge that if the jury believed that the bank knew the defendant to be an accommodation indorser, and had assured him, prior to his indorsement of the note, that the collateral security was sufficient, and had failed to realize upon the said security by reason of its own delay, the verdict should be for the defendant. Refused. (Second assignment of error.) If the jury believe that defendant notified plaintiff to proceed against the maker of the note, and also to sell said stock, or allow defendant to sell said stock for the purpose of realizing sufficient to pay said note, and plaintiff refused or neglected to proceed against maker or to sell said stock, whereby the benefit of such collateral security was lost, then their verdict should be for |