distributed among the husband’s creditors. The real estate of the husband, a farm of about 100 acres, had also been sold by the sheriff, and purchased by the brother. After the sale the brother leased the farm to the husband upon a' contract- for the payment of wages to the husband. The personal property in question, being a stock of horses, cattle, sheep, hogs, and farming implements, remained on the premises, and were used, by the consent of the owner, the brother, in conducting the farming operations. The brother had borrowed $3,700 upon a mortgage of his own land and this farm, in order to raise the money with which to buy the real and personal estate of the husband, and the money was so applied. All this occurred in 1879. The husband and wife occupied the farm for several years, and the mortgage given by the brother for $3,700 was reduced by payments to $3,000 by the year 1883. In that year the brother agreed with the wife to sell her the land for $3,000 in order that the mortgage might be paid off. So much is clear under the evidence. The money was furnished by one Williamson, in the interest of the Wife, and the form of the transaction was that the brother made a deed in fee-simple to Williamson for the farm for the consideration of $3,000, which was paid by Williamson. The latter immediately agreed with the wife, in writing, to sell her the land for $3,000, payable in four years, with interest, and that in the mean time she should occupy the land, and take the profits. The title to the land is still held by Williamson, and the wife and her husband have been in possession of the land ever since.

Now, the question is as to the title to the personal property. The plaintiff claims it was given to her by the undoubted owner, her husband’s brother. The defendant claims it was purchased by the plaintiff on credit, and, as she had no separate estate, it became the property of the husband, and subject to his debts. There is no dispute about the law. If the property was given to the wife, she could hold it, beyond question, as her own, and free of liability for her husband’s debts. This question was substantially submitted to the jury by the answer of the court to the plaintiff ’s first point; and, as the jury has found for the plaintiff, we must assume the wife’s title to have been derived by gift from the former owner, the husband’s brother. It is true, the first clause of the point affirms a good title in the wife, whether acquired by gift or purchase, but the last clause excludes a purchase on credit, or with the funds furnished partly or wholly by the husband, and, thus stated, the point was correctly answered; and the title, by gift, or by purchase other than with the husband’s money, was all that remained in the point. There was no evidence of purchase with money furnished by anybody, unless the $3,000 was in part the consideration of the personal estate. But there is no testimony to prove this, and, on the contrary, the testimony is very clear, and without contradiction, that the whole of the $3,000 “was required to pay for the land. The court told the jury emphatically and repeatedly that the wife could not buy on credit, and that, if this property was the result of her own earnings, it belonged to her husband. While the evidence was not very distinct as to the transfer of the per

v.6A.no.9——58

sonal property, it was substantially to the effect that it was given to the plaintiff by her husband’s brother. Thus, Mr. Walker, the attorney who acted for those parties, says: “His wife has the farm back to-day, as I understand it. But she owes Mr. Williamson a mortgage; and the personal property John turned over and gave to her.” The testimony of the brother is somewhat muddy, but he says he was the owner of the personal property up to the time of the Williamson transaction; that he intended it to stay on the farm; that he neither sold nor gave it to his brother; and that, when the mortgage given by him was paid, he claimed no further title to the land orstock. Williamson testified that the $3,000 furnished by him was to pay for the land only. Mrs. Sutton testifies that her understanding of the transaction was that the personal property was to be hers, and added, “John told me, at that time, that he would give me”——, when she was interrupted by an objection, and the court excluded the rest of the declaration, though for what reason we cannot understand. She was a competent witness, and could prove a verbal gift directly from the owner, either by her own or any other testimony. The defendant gave no testimony, and we think there was sufficient evidence to justify the jury in inferring a gift, by John Sutton to his sister-inlaw, of the personal property in question.

In the case of Hess v. Brown, 111 Pa. St. 124, S. C. 2 Atl. Rep. 416, we held that a married woman may receive, as a gift, her husband’s property from one purchasing it at a bona fide sheriff’s sale, subject to a reservation by the donor, and use it, trade with it, purchase other goods with the proceeds, and hold all against the husband’s creditors. Whether the transfer of this property is a gift, or whether it is a purchase by the married woman on her own credit without any separate estate to support it, is a questidn for the jury. That ruling covers every aspect of the present case, and we find no error in the record. Judgment affirmed.

LLOYD’s APPEAL.l
(Supreme Court of Pennsylvania. November 1, 1886.)

AUDITOR—REPORT—Excnrrrons—FAILURE TO FILE IN TIME—COMMON Pans-— DISCRETION.

Unless exceptions to the effect that an auditor appointed by the court has failed to report the whole of the testimony presented to him, have been filed within the time specified by the rules of court, the supreme court cannot take cognizance of the subsequent action of the court of common pleas refusing to hear a party’s depositions; this being a matter purely discretionary.

Appeal and certiorari by E. A. Lloyd from the decree of common pleas, Cambria county.

Before an auditor appointed to distribute funds in the hands of the sheriff, arising from the sale of the real estate of James Kelly, E. A. Lloyd appeared as a claimant. The auditor, in his report, rejected Lloyd’s claim, and awarded the fund to another claimant. Exceptions to the report were filed by Lloyd, but no exception was filed alleging that the auditor had not taken down and reported all the testimony. Subs sequently he presented a petition alleging that the auditor had not taken down and reported all the testimony submitted, and asked a reference back to the auditor for rehearing, which the court refused; whereupon this appealwas taken.

Alfred Ashton and W. H. Sechler, for appellant.

The finding of an auditor, if not supported by the evidence, may be set aside by the court. Speakman’s Appeal, 71 Pa. St. 25; Stehmen’s Appeal, 5 Pa. St. 413; In re H arland’s Accounts, 5 Rawle, 323. Auditor’s reports are conclusive unless cause be shown why they should not be. A refusal to hear such cause is error.

John P. Linton, for appellee.

Plaintiff is virtually asking a new trial, as he submitted his proofs to the auditor, who decided against him. This petition is an after-thought, and the subject of it was not embraced in proper exceptions, as it should have been. The whole matter was one of discretion in the court, and cannot be assigned as error. Latshaw v. Steinman, 11 Serg. & R. 357; Dubois v. Glaub, 52 Pa. St. 24.2; Waldron v. Waldron, 55 Pa. St. 231; Pringle v. Pringle, 59 Pa. St. 281.

PER CURIAM. If, as is now alleged by the learned counsel for the appellant, the auditor failed to report the whole of the testimony presented to him, an exception to that effect ought to have been filed within the» time specified by the rules of court. This not having been done, we cannot take cognizance of the subsequent action of the court of common pleas refusing to hear the appellant’s depositions; a matter purely discretionary.

Decree affirmed, and the appeal dismissed, at the costs of the appellant.

GREGG and others 0. GEORGE.l
(Supreme Court of Pennsylvania. November 1, 1886.)

HUSBAND AND WIFE—WIRE’s SEPARATE ESTATE—PURCHASES 0N CREDIT or—‘ HusBAND’s DEBTS.

If a married woman, having a separate estate, purchases goods on credité giving therefor her note, with a surety, who became such in consequence 0his knowledge that she was possessed of available means sufficient to meet the note when due, then the purchase was made, not upon her personal credit merely, but upon that of her separate estate, and such goods cannot be taken in execution to satisfy judgments against her husband.

Error to common pleas, Washington county.

Feigned issue awarded by the court, under the sheriff’s interpleader act, between Mrs. M. L. George, plaintiff, and Gregg, Son & Co., defendants.

Under a fier'i facias issued by Gregg, Son & Co. against Joseph J. George, the sheriff levied on the contents of a store found in George’s possession. The store was claimed by George’s wife, whereupon this issue was awarded. It was shown that plaintiff became the wife of defendant in the execution in April, 1877; that she had then a separate estate, amounting to $2,000; that in December, 1877, (her husband being then insolvent,) she obtained one Thomas McFadden to buy for her at public sale a small drug store which was being sold,——the seller taking plaintiff’s note for the price, $125, at three months, with Thomas McFadden as surety, which note was afterwards paid by plaintiff. McFadden, at the time, knew that plaintiff had a separate estate. Counsel for defendants asked the court to instruct the jury that, there being no evidence that the store was bought on the credit of plaintiff’s separate estate, the verdict must be for defendants. This was refused, and the jury was instructed:

“If you are satisfied from all the evidence as to the insolvency of the busband, and of the knowledge of Mr. Thomas McFadden, who became the suretfi of Mrs. George upon the note given to the assignee of Burns, that she had separate estate, and that Mr. McFadden became surety on this note in consequence of his knowledge of Mrs. George’s circumstances,-that she had available means of her own with which to meet this note,—then the purchase was made, not upon her merely personal credit, but upon the credit of her separate estate.

Verdict and judgment for plaintiff, whereupon defendants took this writ.

Dougan dc Todd, for plaintiffs in error.

The credit was not given upon the footing of plaintiff’s separate estate, but upon the suretyship of McFadden. It was error to submit a question to} the jury of which there was no evidence. Gilchrist v. Rogers, 6 Watts 80 S. 488; Evans v. Mengel, 1 Pa. St. 68; Jordan v. Headman, 61 Pa. St. 176; Hyatt v. Johnson, 91 Pa. St. 200; Egbert v. Payne, 99 Pa. St. 244; Keeney v. Good, 21 Pa. St. 355; Gamber v. Gamber, 18 Pa. St. 366; Gault v. Saflin, 44 Pa. St. 307; Baringer v. Stioer, 49 Pa. St. 131.

J. P. Miller, for defendant in error.

The evidence clearly warranted the court in charging as it did. The test is, id the wife pay the note with her separate money? If she did, then the purhase was on the credit of her separate estate. Seeds v. Kahler, 76 Pa. St. 62.

PER CURIAM. This case was properly ruled and submitted to the ury. We agree with the learned judge that if Thomas McFadden beame surety on Mrs. George’s note, which was used for the purchase of he goods in controversy, in consequence of his knowledge that she was )OSSGSSGd of available means sufficient to meet the note when due, then he purchase was made, not upon her personal credit merely, but upon hat of her separate estate.

The judgment is affirmed.

ELLIOTT v. TYLER.‘
(Supreme Court of Pennsylvania. November 1, 1886.)

. A'SrTORNEY AND CLIENT—PURCHASE BY FORMER or LATTER’B LAND AT Tax ALE.

An attorney at law cannot buy in, at a treasurer’s tax sale, and hold as his

own, the land of his client.2 . SAME—ATTORNEY MUST Snow Hrs TITLE To BE MARKETABLE BEFORE HE can COMPEL PAYMENT BY Hrs VENDEE.

An attorney at law purchased. at a treasurer’s tax sale, property which had belonged to his clients. and sold the same to a third person. The latter refused to accept the property on the ground that the title was not marketable. Held, that the question whether or not the relation of attorney and client existed at the time of the treasurer’s sale was not one that the purchaser from the attorney could not be called upon to solve, and that until it was solved, and that in favor of his vendor’s title, he might refuse payment.

Error to common pleas, Mercer county.

Covenant by J. G. Elliott against Joseph Tyler.

On June 12, 1882, plaintiff purchased, at treasurer’s sale, one acre of nd situated in Sharon, Mercer county, Pennsylvania, assessed for taxes

the name of “John Adams’ heirs.” On July 9, 1884, he sold the me to Joseph Tyler by article of agreement, and covenanted to make im a good and sufficient deed of general warranty therefor, and, in purance thereof, tendered to defendant such deed in proper form in Ocber, 1884. Defendant refused to accept this deed, whereupon this as brought to enforce payment of the purchase money. On the trial, fore MEHARD, P. J ., defendant Offered in evidence the record of cerin proceedings in partition of said land in the common pleas of Mercer unty to show that plaintiff had been attorney for all of John Adams’ irs therein, except one. These proceedings ended on April 10, 1879, hen the land was awarded to one of the heirs. Plaintiff testified that s connection with the case ended on that date. The court directed e jury to render a verdict for defendant, on the ground that plaintiff’s