The opinion
The opinion of the court was delivered, January 5th 1874, by
Mercur, J. —
Since the Act of 11th of April 1848, it has been settled by numerous decisions of this court that the proceeds of the wife’s separate property cannot be seized for the husband’s debt: *451 Manderbach v. Mock, 5 Casey 48; Rush v. Voight, 5 P. F. Smith 437; Brown v. Pendleton et al., 10 Id. 419; Musser v. Gardner, 16 Id. 242. If her property be real estate, the fact that her husband’s labor assisted in creating the products derived therefrom, does not make them liable for his debt: Rush v. Voight, supra.
Property purchased by a wife on the credit of her separate estate, or by her earnings, derived from the management of it, is protected from her husband’s creditors: Brown v. Pendleton et al., supra. The jury has found that the property in question was acquired by Mrs. Porter upon the credit of her separate estate, and that it was afterwards paid for out of the proceeds which she derived from Cosgray’s occupancy of the same. The evidence clearly justified this finding. There is no error in the charge. The first and fourth assignments are not sustained. Under the evidence the court was correct in refusing to affirm the point covered by the second assignment. There was no testimony that Mrs. Porter acquired the property otherwise than as her share of the profits under her agreement with Cosgray. It is error to submit a question of fact to the jury of which there is no evidence: Sartwell v. Wilcox, 8 Harris 117; Lower et al. v. Clement, 1 Casey 63.
The manner in which the point covered by the third assignment was presented, is so unusual we at first supposed the word “ disbelieve” had been inadvertently used for “ believe,” and that the court must have so understood it. An examination of the original written point, however, as well as the fact that in the fifth point presented by the defendant below, the language is changed to “believe,” leaving the point otherwise the same, satisfied us it was designed as written. The plaintiff below could not recover without evidence. Evidence is such proof of the fact alleged as satisfies the mind. If all the testimony given in support of the allegation -is disbelieved, it necessarily follows that the mind would be unsatisfied ; the evidence would be insufficient, and the plaintiff could not recover. As the credibility of witnesses is a proper question for the jury to pass upon, and the point submitted clearly raised that question, it should have been affirmed. The affirmance, however, should have been accompanied by proper explanations and instructions, as to weighing the testimony and testing the credibility of witnesses. The third assignment is therefore sustained.
Judgment reversed, and a venire facias de novo awarded.
Asnbw, J., dissented.