restrict the effect of the judgments thereby created. Hence it was held in Brandt’s Appeal, 16 Pa. St. 343, that the record transferred under the act does not become a very judgment of the court of the county in which it is entered, but a quasi judgment, and that, too, only for limited purposes; that the regularity or merits of it cannot be reviewed elsewhere than in the county in which it was recovered further than to stay execution. If the original judgment be set aside, the judgment entered on the transcript falls with it. The latter is not an independent and selfsustaining judgment. Two independent judgments of the very same kind, each binding the person, and each for the same thing, cannot be sustained. If it were otherwise, the payment of one would not be a satisfaction or discharge of the other.

Although the act of menty-ninttharch, 1859, declares that decrees in equity for the payment of money shall be and constitute a lien on the real estate of the defendant named in the decree, for the like period, and with the same force and effect, as the lien of a judgment rendered by and in a common-law court of this commonwealth, and be entered in like manner in the judgment or lien docket of the proper county, yet it was held in Brooke v. Phillips, 83 Pa. 'St. 183, that such a decree cannot be transferred to another county for the purpose of lien and execution as in case of a judgment at law. To hold that an execution may be issued by the court of the county in which the‘transcript of the record is filed without a revival there, when none can be issued in the county where the parent judgment remains, would be to sanction a proceeding not within the meaning of the statute, but one in conflict with the spirit of the decisions giving construction thereto.

The learned judge was correct in the reasons which he gave in favor of setting aside the execution, but was wrong in adopting the conclusion of the president judge in another case. Judgment reversed, and rule to show cause why the alias fi. fa. should not be set aside made absolute.

1. HUSBAND AND WIFE—SEPARATE ESTATE—ACTION—AVERMENTS.

An allegation that the debt contracted for any act done for a married woman was at her instance and request is not sufficient; it must be averred, in some suitable language, that the act done was a necessity.

2. AssUMPsr'r—AFFIDAVIT 0F DEFENSE—LAW—Boox-Accoun'r—COMMIssIons.

A copy of a book-account charging commissions for the sale of a house, and items of money paid, is not within the affidavit of defense law.

3. ERROR—FEM!!! COVERT.

The statute limiting time within which a writ of error may be sued out does

not apply to a feme covert.

Error to common pleas, Cumberland county. Assumpsit by Amos Early and Elias E. Kinzer, trading as Early & Kinzer, against James V. Fenn and Rebecca J ., his wife.

The statement of plaintiff’s claim filed was “for work and labor, done for and in relation to the sale of the real estate of the said Rebecca J. Fenn, of which she was the owner at the time when said work was done, as per copy of book-account, and at her instance and request.” To this was attached a copy of plaintiff’s book-account, charging commissions for the sale of a house and advertising. On May 23, 1883, judgment was taken against defendants for want of an affidavit of defense, and on the same day an affidavit of defense was filed alleging the coverture of Rebecca J. Fenn; that the services were not necessaries, nor for the improvement of her real estate. This should have been filed on May 25th, but, owing to a mistake, it was not so filed; and on May 29th, on petition, a rule was granted to show cause why the judgment should not be stricken off or opened. This rule was discharged on August 22, 1883, Without notice to defendants. On April 22, 1884, on petition, a similar rule was granted, which, on January 5, 1886, after hearing, was discharged. Whereupon defendants took this writ.

S. Hepburn, Jr., E. W. Biddle, and Fleming a McCarrell, for plaintiffs in error.

The items of cash paid are not proper subjects of a book of original entry, nor are those of commissions for the sale of houses. Hale’s Ew’rs v. Ard’s Em’rs, 48 Pa. St. 22; Greall v. Noll, 1 Wkly. Notes Gas. 26; McStay v. Dugan, 2 Wkly. Notes Gas. 226; Sylvester v. Thompson,~ 11 Wkly. Notes Gas. 203; Hadley v. Fitter, 12 Wkly. Notes Gas. 461. There is no averment that the acts done were necessaries. Parke v. Kleeber, 37 Pa. St. 251; Scott v. Wilmer, l Wkly. Notes Gas. 41; Eisenbery v. Negus, 2 Wkly. Notes Gas. 445; Cooper v. Wallace, 7 Wkly. Notes Gas. 468; Debraham v. Walker, 3 Wkly. Notes Gas. 26; Lippincott v. Hopkins, 57 Pa. St. 328. Where charges are against a Wife, no judgment can be taken against the husband for want of an affidavit of defense. Herron. v. Miner, 4 Wkly. Notes Gas. 226; Endl. Law, § 196.

Francis Jordan and James M. Weakley, for defendant in errors.

After the first rule was discharged the matter was res adjudicata. Frauenthal’s Appeal, 100 Pa. St. 291; Mitchell v. Pierce, 1 Wkly. Notes Gas. 156. ~ The action of the court was presumed to be with notice. Association, etc., v. McBride, 4 Wkly. Notes Gas. 477; Banter v. Seeley, 10 Wkly. Notes Gas. 208. The equitable discretion of a court is not reviewable. Wernet’s Appeal, 91 Pa. St. 319; Com. v. Howard, 11 Wkly. Notes Gas. 81.

M ERCUR, C. J. Inasmuch as the plaintiff in error is a feme covert, the statute limiting the time within which a writ of error may be sued out does not apply to her. The motion to quash the writ is therefore denied.

The main contention is whether the statement filed is sufficient to support the judgment. The claim is to recover a judgment in personam against the husband and wife for work and labor done and money expended in relation to the sale of the real estate of the wife, at her instance and request. The proviso to the act of eleventh April, 1848, gives no express authority to a married woman to bind her separate estate by contract for the improvement or repair of her real estate. This power is only constructively within the act. Heugh v. Jones, 32 Pa. St. 432; JlIurray v. Keyes, 35 Pa. St. 384; Shannon v. Shultz, 87 Pa. St. 481. To sustain a common-law action against a husband and wife, with a view of charging the separate estate of the wife, facts must be averred in the narr, and proved on the trial, sufficient to bring the case within the act. It is not sufficient that a cause of action against the wife be proved; it must also be set forth in the declaration. Murray v. Keyes, supra; Parke v. Kleeber, 37 Pa. St. 251. When the attempt is to charge the real estate of a married woman by a mechanic’s lien, the same (rule applies. Shannon v. Shultz, supra; Kuhns v. Turney, 87 Pa. St. 497; Loomis v. Fry, 91 Pa. St. 396. A judgment against a married woman which does not affirmatively show her liability on a contract within the statute is void, and a sheriff’s sale of her property on execution issued thereon will confer no title on the purchaser. Hecker v. Hack, 88 Pa. St. 238; Hugus v. Dithr'idge Glass Co., 96 Pa. St. 160.

Applying these rules of law to the record in this case, we find it clearly defective. It contains no averment that the debt was contracted for any act done that was necessary for the use, enjoyment, or preservation of her property, or that its condition or value was such as to make a sale thereof necessary or even advisable for her advantage or profit. It is not sufficient to allege that it was done for her use, and at her instance and request. In some suitable language the necessity therefor must also be averred in the statement or narr. No such language is contained in this statement.

We also think the items contained in the copy of the alleged book-account filed are not within the meaning of the rule requiring an affidavit of defense to be put in. The principal item is for commission on sale of a house. This is not a proper subject of a book charge, to be proved by the production of the book as one of original entry. Hale’s Ex’rs v. Ard’s Ex’rs, 48 Pa. St. 22. Other items are manifestly for money paid. The fact that the statement of the account is copied from books which the plaintiff below avers to be his books of original entries does not cure the defect. If the entries had no legal standing there to charge the defendant, a copy thereof cannot give to them additional force. If they were not originally proper subjects of book-account, they have not become so since, and therefore are not within the rule requiring an afiidavit of defense when “a copy of the book entries” is filed.

Judgment reversed, and a procedendo awarded.

Appeal of READING FIRE Ins. & TRUST Co., Guardian.1
(Supreme Court of Pennsylvania. October 4, 1886.)

H ITSBAND AND WIFE — MARRIAGE — PRESUMPTION — EVIDENCE — COEAIBITATION AND REPUTATION.

Cohabitation and reputation alone are not marriage. They are merely cir

cumstances from which a marriage may sometimes be presumed. It is a presumption that may be rebutted by other facts and circumstances. When the relation between a man and a woman living together is illicit in its commencement, it is presumed to so continue until a changed relation is proved. Without roof of subsequent actual marriage, it will not be presumed from continued) cohabitation and reputation of a relation between them which was of illicit origin.

Appeal of the Reading Fire Insurance & Trust Company, guardian of Charles B. Riegel, a minor child of Jacob R. Riegel, deceased, from the decree of the orphans’ court of Berks county dismissing the exceptions filed by the said appellant to the $300 exemption appraisement of Ellen Riegel, who claims to be the widow of Jacob R. Riegel, deceased, and confirming absolutely said appraisement.

The facts of the case are fully set forth in the opinion of the supreme court.

Bland &' Dettra and Isaac Hiester, for appellant.

Marriage is a civil contract, and is provable by cohabitation, reputation, acknowledgment, reception of the family, and other circumstances. Lehigh Val. R. Co. v.Hall, 61 Pa. St. 361; Vincent’s Appeal, 60 Pa. St. 228. The marriage here between the alleged widow and Ribble is clearly proved by cohabitation and reputation. Y ardley’s Estate. 75 Pa. St. 207; Com. v. Stamp, 53 Pa. St. 132; Greenawalt v. McEnelley, 85 Pa. St. 352; Hefner v. Hefl'ner, 23 Pa. St. 104. The relation was illicit in its origin, and so continued. Tholey’s Appeal, 93 Pa. St. 36; Hunt’s Appeal, 86 Pa. St. 294; Brinokle v. Brinchle, 12 Phila. 234; Rose v. Clark, 8 Paige, 574; Bicking’s Appeal, 2 Brewst. 202; Hill v. Hill, 32 Pa. St. 511.

H. O. Schrader and Er'mentrmtt dz Ruhl, for appellee.

The law favors the legality of marriage, and will not uselessly bastardize issue. Montague v. Montague, 2 Add. 375. There is no proof that the origin of this intercourse was illicit. Hill v. Hill, 32 Pa. St. 511; Senser v. Bower, 1 Pen. & W. 450. Even where the origin is illicit, yet the relation is changed, and a marriage in fact is alleged, this can be proved by acts of recognition. cohabitation, and reputation. Hunt’s Appeal, 86 Pa. St. 294; Richard v. Brehm, 73 Pa. St. 140; Seibert’s Estate, 1 Pa. Co. Ct. 229.

MERCUR, C. J. This is an appeal from a decree setting off $300 worth of property to the alleged widow of Jacob R. Riegel, deceased. Whether the appellee was ever his lawful wife is the question in the case. It is clearly proved that they lived and cohabited together for several years. She gave birth to a child, which he claimed and recognized to be his. There is evidence that at times he declared she was his wife, and introduced her as such. On one occasion when he conveyed some real estate, she joined in the deed as his wife. At other times, when asked whether he was married to her, he would give evasive answers, neither admitting nor denying that he was or wasnot. At the time the child was born Rebecca Forney swears they were not married. That witness asked each of them about that time. “He said he was not married; that he would take her for a housekeeper.” “He said he would never, marry her.” “She said she was long ago married.” At other times the ap— pellee spoke of him as her husband. Mrs. Dr. Rhoads, however, testifies, after Riegel and the appellee had lived together for some time, that the ‘latter “complained to her that he would not marry her.” “She blamed his sister for being opposed to his marrying her.” “She said whenever she would ask him to marry her, he would say, ‘I cannot; my sisters don’t want you in the family.’ ” \Vitness further testified the appellee said “she told Jacob Riegel to get himself another housekeeper if he would not marry her.”

The whole evidence discloses quite a difference of opinion in the minds of their neighbors as to whether they were married. It was so uncertain that there appears to have been much talk questioning it while they were living together. The evidence does not show any actual marriage, nor any well-recognized general reputation that they were married. Soon after the death of Riegel, and before his funeral, Ressler swears he was at her house, and said to her, “ You know there are rumors on the streets that you and Jacob Riegel were not married ;” and she answered, “If we ain’t married, I was true to him all the time we lived together.” She was afterwards called, and testified in her own behalf. She denied generally that she had such a conversation with Mrs. Rhoads, and swore that she did not tell her that she said to Jacob, “If you don’t want to marry me, then get yourself another housekeeper.” She did not specifically deny other portions of Mrs. Rhoads’ evidence, equally as strong and expressive that no marriage existed; nor did she‘deny having used the language testified to by Ressler. She did not swear that she was ever married to Riegel, or that there was any agreement between them under which they lived together as husband and wife. On the argument of the case in the court below it appears, by the opinion of the court, that the appellant asked why she was not examined with reference to her marriage with the decedent. The answer was that she was called and testified only in rebuttal. The learned judge says: “The question why she was not called and did not testify in chief still remains unanswered. and I submit that I am not able to answer it.” We think the easy and correct solution of this question is to infer she was not called in chief to testify to an alleged marriage with Riegel, by reason of her known inability to testify to any fact sufficient to prove a marriage.

Undoubtedly they lived together for a long time under circumstances to prove intimate sexual relations; but cohabitation and reputation alone are not marriage. They are merely circumstances from which a marriage may sometimes be presumed. It is a presumption, however, that may be rebutted by other facts and circumstances. Hunt’s Appeal, 86 Pa. St. 294. When the relation between a man and a woman living together is illicit in its commencement, it is presumed to so continue until a changed relation is proved. Without proof of subsequent actual marriage, it will not be presumed from continued cohabitation and reputation of a relation between them which was of illicit origin. Id. Here the evidence establishes with sufficient certainty that, in its inception, the relation between the appellee and Riegel was illicit, and there is no sufficient evidence to create a legal presumption of any subsequent marriage. In arriving at this conclusion we do not doubt the correctness of the law as declared in Richard v. Brehm, 73 Pa. St. 140, and numerous