delivered the opinion of the court, May 17th, 1886.
This action is, in form, a foreign attachment, brought by George B. Davidson, who resides in Bradford County, in this state, against A. C. Bentley, a resident of Waverly, in the state of New York, in which a young trotting horse, named Waxey B., alleged to be the property of the defendant, was attached in the hands of L. S. Kingsbury, the garnishee. On the 14th February, 1883, judgment was entered in favor of the plaintiff and against the defendant, in the sum of $494.38.
The present contention arises upon the trial of the scire facias against the garnishee; the plea is nulla bona, and the defence under it is, that the trotting horse attached is not the property of the defendant, but was in fact owned by Mrs. A. W. Bentley, the defendant's wife. It is admitted that the horse Waxey B., when a colt, was the property of one T. J. Berry; that he was of good blood, but was then poor, unhealthy, and of little value. In October, 1878, when the colt was some eighteen months old, Berry placed him in the hands of Bentley, to be cared for and trained for the track as a trotter.
Mrs. Bentley, at this time, it was shown, was, or assumed to be, the owner of a livery establishment at Waverly, which was conducted in her name. The testimony was somewhat conflicting as to whether or not Bentley took charge of the colt on his own account or in the interest of his wife; but, at all events, the bargain was that Bentley or his wife was to take *383the colt, care for and “ cultivate ” him, and, when sold, one half of the proceeds should belong to Berry and the other half to Bentley or his wife, as the case may be. It appears, however, that, in March, 1879, Mr. Berry went over to Waverly and sold the colt to Mrs. Bentley for $70.00. The testimony is wholly to the effect that the sale was of the entire interest, not of the one half only; and as the husband was present and participated in the transaction, the purchase by the wife, whatever the right of the husband may have been, must be treated as a purchase of the entire title, if she paid her own money upon it.
When a creditor seizes property in the possession of a husband for his debt, the presumption is that it belongs to him and not to the wife, and this, as stated by the learned court below, is a violent one, and is adhered to for the purpose of protecting creditors. If the wife sets up a claim to it as against the husband’s creditors, she must show that it is hers; the burden of proof is upon her, and the evidence must be clear and satisfaetory.ry.
Mrs. Bentley testified, and in this she was to some extent corroborated by her husband, that her mother, who lived in Kansas, had on several occasions given her money; that in the fall of 1878 her mother was at Waverly, and gave her $7.0.00; that she kept this money in the drawer with the money received from the livery, but separate from it, and in the spring of 1879, when she bought the colt from Berry, she applied $50 of this money on the purchase; that the remaining $20 remained in the drawer, and was used and applied by her indiscriminately with the other moneys therein, in buying such things as she needed. In sixty days thereafter she took twenty dollars from the same drawer, and, in compliance with her contract, paid the balance of the purchase. The colt, it appears, afterwards grew to be a valuable horse, and exhibited unusual power for speed; he was estimated to be worth from $1,500 to $2,000.
There is no evidence that Mrs. Bentley purchased and paid for the livery with her own funds; as to Bentley’s creditors, the presumption is that the livery was his, but the $70 which Mrs. Bentley received from her mother was her money, and it did not become any less hers from the fact that she kept it in the money drawer of the livery.
If the evidence of Mrs. Bentley be true, and it is not contradicted, the $50 which she first paid upon the purchase of the colt, was the identical money she received from her mother in the previous autumn, and in which her husband could have no possible interest. The evidence is that the credit for the balance was given to her and not to the husband; she then *384had money- on hand of her own sufficient to,pay it, and "it was’’ upon-the faith of her ability to pay the credit was given. The money which she .afterwards did pay was taken from the drawer, in discharge of the debt the drawer owed her for'the; money she had previously deposited in it. If, instead of being the wife of Bentley, she had been his business manager or clerk,it would not be doubted,'we think, that she might reimburse-herself for funds of-her own she had thus applied, and we cannot see upon what rule of law a wife may not do the same.
The learned court seemed to suppose that, in order to ValN date her right to this colt, Mrs. Bentley was obliged to show-that"she had a right to"the lively also ;• that'she could not put^ her own money irito the money drawer used in the manage-" ment of her husband’s business without absolutely forfeiting^ her right to it. She might, ive think, have put her money in the drawer, or indeed in his- pocket-book, -and suffered him to carry it upon his person for her, or she might have loaned it to him, and in either case she had a right, with liis consent, to receive it back again, in the same or.other bills as she chose.' There is-no evidence that, by depositing the money in the drawer, she intended to bestow the money as a gift to her husband; on the contrary, she assumed to be the owner of the livery; as between herself and her husband she was the owner'; the money was put into The drawer as her own money, and was drawn out again as her own. We think the learned' court erred in giving binding- instructions to the jury that, in any event, under the evidence, the plaintiff below was. entitled' to recover at least two sevenths of the válue of the horse. The whole question was one of fact for the determination of the jury, and the cause should have been so submitted.
.The judgment is reversed, and a venire facias de . novo awarded.