kindred cases. Many times marriage may be proved by acts of recognition, continued matrimonial cohabitation, and general reputation. Here, however, the evidence falls far short of satisfying the mind that there was ever'any actual agreement to form the relation of husband and Wife.

There is another feature in the case which, if proved, would establish that she is the wife of another man who is still living. The appellant gave evidence tending to prove that, before the appellee formed any relations with Riegel, she lived and cohabited with one Jeremiah Ribble, and was reputed to be his wife, and he is still living. Some eight witnesses testify that Ribble and she were living together, keeping house, and reputed to be husband and wife. Four of these witnesses were neighbors, living on the same street with them. One was a cousin of the appellee, and three of them were brothers of Ribble. Two of the brothers testify that he told them he and she were married, and were living together or keeping house. The evidence of cohabitation and reputed marriage with Ribble, during the time she lived with him, is of the same general character as that given to prove the subsequent relation between her and Riegel; but that time was of much shorter duration. She swears she never lived with Ribble as his wife. If in fact she lived and cohabited with him as his mistress, the reputation proved and his declarations would not make her his wife.' They would not be sufficient to establish the existence of a valid marriage with him. They do, however, tend to strengthen the probability that she may have formed the same kind of meretricious relation with Riegel. The evidence of any marriage with him is too weak and uncertain to establish that relation, and the learned. judge erred in holding otherwise.

Decree reversed, at the costs of the appellee, the confirmation of the appraisement to her is taken off, the exceptions thereto are sustained, and the appraisement is set aside.

ZURN v. NOEDEL.l
(Supreme Court of Pennsylvania. October 4, 1886.)

1. HUSBsAND AND WIFE—MARRIED WOMAN—SEPARATE EARNINGS—ACT or APRIL 3, 1 72.

After a married woman had applied for the benefit of the act of Pennsylvania, April 3, 1872, securing to married women their separate earnings, she made a promissory note to her consignee, and authorized him to retain, out of the proceeds of a consignment, interest on a judgment given by her before she applied for the benefit of the act. Held, that the contract to pay the note and the interest on the note was valid, but the amount of the judgment was not recoverable. Booard v. Kettering, 101 Pa. St. 181.

2. SAME—NOTE—-PROCEEDS—APPLICATION—OBLIGATION.

Where the proceeds of a note were not traceable directly to the manufacture of an article in which a married woman was engaged, but the money was borrowed to enable her to engage in the business, her obligation to pay the note was not impaired.

Error to common pleas, York county.

Assumpsit by G. W. Noedel and Bertha, his wife, in her right, against Louis Zurn, for the value of goods consigned. .

G. W. Noedel was engaged in the manufacture of limburger cheese, and consigned the same to Louis Zurn, a commission merchant, until the former’s failure, when the business was carried on by Bertha Noedel, his wife, who executed a note, with warrant of attorney to confess judgment for $1,500, upon which judgment was entered. Subsequently, after Bertha Noedel had taken the benefit of the married woman’s act of 1872, this judgment was revived, and judgment entered for want of an affidavit of defense. After this Bertha Noedel made a note to Zurn for $400, for money advanced, forwarded to him a consignment of limburger cheese, and wrote that“you have enough to cover you.” “Make now all the disbursements and advances and interest on the $1,500 on the above lot of cheese, and try to make account sales as soon as you can.” Zurn neglected to make return for the sales. The above action was brought, and tried before Judge LATIMER, then acting as referee. The referee, inter alia, rejected the claims for the note for $400, and interest on the $1,500. Judgment. Exceptions were taken and dismissed by the court, LATIMER, J ., whereupon this writ was taken.

N. M. Wanner and W. F. Bay Stewart, for plaintiff in error.

Although the money was not. traced into the limburger cheese, it was used in farming, and within the ruling of Boom-d v. Kettering, 101 Pa. St. 185; Dando’s Appeal, 94 Pa. St. 76; Brown’s Appeal, Id. 367.

H. L. Fisher and T. W. Noedel, for defendants in error, cited—

McMullen’s Appeal, 107 Pa. St. 94; Vandyke v. Wells, 103 Pa. St. 49; Clyde v. Keister, 32 Pa. St. 85; Shnyder v. Noble, 94 Pa. St. 286.

PAXSON, J. We are unable to see any error in the refusal of the court below to allow the plaintiff in error his claim for commissions. Undoubtedly he would have been entitled to them had he in all things performed his duties as consignee. in a proper manner. But the referee has found that he did not, and we are entirely satisfied with that finding. Even if we were not, and were disposed to review it, we could not do so in the absence of the evidence, the documentary portion of which only is printed.

Nor do we see any error in the disallowance of the $1,500 judgment. It was given by Mrs. Noedel when covert, and before she applied to the court for the benefit of the act of April 3, 1872. It was not, under all the authorities, a binding obligation upon her.

But we think the court below fell into error in rejecting the claim of the plaintiff in error to be allowed the interest on this judgment, and also for the balance of the note of 3402. Mrs. Noedel, defendant in error, has consigned to the plaintiff in error a large amount of limburger cheese which she had manufactured on a farm in York county. The farm appears to have been owned, at least carried on, by her husband at one time. He failed in business, and some personal property he had there, including some limburger cheese, was purchased by his wife, Mrs. Noedel, who continued the business of manufacturing this species of cheese in connection with the farm. It was found by the referee that she had sufficient separate estate to make the purchase. The $402 note referred to grew out of this transaction. Prior to her giving it she had applied to the court of common pleas for the benefit of the act of April 3, 187 2, which secures to a married woman her separate earnings. This brings the case within the ruling of Bovard v. Kettering, 101 Pa. St. 181. The learned judge below held that Bova/rd v. Kettering did not apply, for the reason, in part, that the proceeds of the $402 note were not traced directly into the manufacture of the cheese consigned to the plaintiff in error. We think this was error. The money was borrowed to enable her to engage in the business which her husband had previously followed. She did so engage, and, as a result thereof, shipped a large amount of cheese to the plaintiff in error, who had advanced the $402. In her letter of February 12, 1876, she authorized the plaintiff in error to retain out of the proceeds of the consignment the interest on the $1,500 judgment, and all disbursements and advances. She was not obliged to pay the principal or interest of this judgment for the reason already given, yet she had a right to do so, and it is no part of our duty to prevent a married woman from .being honest. Her consignee held this judgment against her, and her letter to him was an appropriation of so much of her money in his hands to the payment of this interest. Under the ruling in Bovurd v. Kettering she was clearly liable on the note, and it did not need her letter to her consignor to justify him in deducting the amount from the sales of the cheese. Both of these claims should have been allowed. Judgment reversed, and a venire facias de novo awarded.

RIFE v. LEBANON MUT. INS. Co.1
(Supreme Court of Pennsyliania. October 4, 1886.)

FIRE INSURANCE—CHANGE—INCREASE 0F RISK—KNOWLEDGE—NOTICE 'ro COMPANY.

Under a. clause in a policy of insurance requiring notice of change which would increase the risk, knowledge that a change would occasion such an increase of risk, and also an increase of rate, made it incumbent on the insured to give notice of the proposed change to entitle him to recover Y for loss from fire. Lebanon Mut. Ins. Co. v. Lorch, 42 Leg. Int. 416, followe .

Error to common pleas, Dauphin county.

The facts are set out in the opinion of the court.

H. M. Graydon and B. F. Etter, for plaintiff in error.

Notice of change is only required when the change increases the risk. Lebanon Mut. Ins. Co. v. Larch, 42 Leg. Int. 416.

Nammer d'c Shoop, for defendant in error.

CLARKE, J. This action of covenant is upon a perpetual policy of fire \ insurance issued by the defendant, April 3, 1871, to the plaintiff, in the

sum of $2,400; $1,000 thereof upon his dwelling-house, $1,000 upon the barn, and $400 on the corn-house. The premiums and assessments had all been promptly paid, and due notice and proofs of loss were given as- required by the policy. Among the printed conditions of the insurance set forth in the policy was the following:

“(9) If, during the insurance, any alterations be made in the premises, buildings be erected, or change made in the use or occupation of the same or neighboring premises, or otherwise, whereby the risk or hazard is increased so as to increase the rate of insurance, it shall be the duty of the insured to give notice thereof to the secretary, pay the additional premium, and obtain the consent of the company thereto in writing; otherwise the insured shall not be entitled to recover for any loss or damage by fire originating in consequence of such change: provided, that in case of any alteration, and consequent increase of risk, the company may, at their option, terminate the insurance, after. notice given to the insured, or his representative, of their intention to ' do so.”

In the year 1881, Michael Schall, who was the owner and operator of a furnace property on the adjoining land, by the order of the court of common pleas of Dauphin county, under act May 5, 1882, constructed a lateral railroad to connect his furnace with the Pennsylvania Railroad, and locomotive engines and cars were placed thereon, and used in transporting coal, ore, and iron between the points named, a distance of about 500 yards. This lateral railroad ran within about 12 feet of the corner of the corn-house, and the jury has found that the fire, which originated in the corn-house, was caused by sparks from the locomotive engines. The question in the cause arises upon the proper construction of the ninth condition of the policy, above quoted. The court submitted to the jury the following questions of fact: First, whether, by the construction of the lateral road, the rate or hazard was increased; and, if so, second, was it increased so as to increase the rate of insurance? and, third, did the fire originate from or in consequence of the change in the occupancy of the neighboring premises? All of these inquiries were settled in the affirmative, and the verdict, under the instructions of the court, was necessarily for the defendant. .

It must be conceded, we think, that the plaintiff was bound only to give notice to the company of any change of which he had knowledge, and by which he knew the rate of insurance would be increased. He was certainly not obliged to give notice of a change in the use or occupancy of his own or the neighboring premises, which, in the fair exercise of his own knowledge and judgment, he believed would not increase the hazard or the rate of insurance. This would be absurd. There may be cases, of course, in which the increase of risk is so palpable and plain that the knowledge of the insured mustnecessarily be inferred. This inference may be drawn from evidence, direct or circumstantial, as in other cases. But the proper question for the consideration of the jurors was not, as the learned judge of the court below seemed to suppose, whether or not, according to their judgment, under the evidence, the risk was so increased as to increase the rate, but whether, from all the facts in the case, the plaintiff. knew that it. was so increased. If he. did, he was bound, by the express terms Of his contract, to give notice Of the fact to the company; if he did not, he was not. The exact question in this case was considered and decided in Lebanon Mut. Ins. Co. v. Lorch, 42 Leg. Int. 416, where our Brother PAXSON, in his construction of a policy containing the same clause, says:

“Had the conditions of insurance required the insured to give notice to the company of any change in the surroundings, it would have been his duty to give notice Of the erection of the carriage factory. Such, however, was not the condition. The notice was only required in casethe change was such as to increase the risk or hazard ‘ so as to increase the rate Of insurance.’ Under this clause it is manifest that the insured must be shown to have knowledge that the building would not only increase the risk, but that it would also enhance the rate Of insurance. The conditions Of the policy must be construed most strongly against the company. We are not to assume, when the plaintiff below seeks to recover on his policies for what at least appears to be an honest loss, that he knew the factory building would increase the risk to such extent as to increase the rate Of insurance. There was nothing upon the face of his policy, or in the conditions attached, had he carefully read every word Of both, which would have given him this information. It was a fact, the solution of which must be found outside this policy. There was not a word of evidence to show that the insured knew that the carriage. factory would increase the risk to the extent specified in the policy; nor, indeed, to any extent.”

The judgment is reversed, and a venire facias de novo awarded.

FERNAU and others v. BUTCHER and others.l
(Supreme Court of Pennsylvania. October 4, 1886.)

ATTACHMENT—ACT MARCH 17, 1869- DrssOLUTION OF—BOND 0F DEFENDANT— ACTION ON. The property of defendant was taken on an attachment under the act March 17, 1869. The defendant executed a bond under the third section of the act, and the property was released. The attachment was subsequently dissolved by the court, and the cause proceeded as if commenced by a summons; a judgment being recovered, and a fieri facias issued, which was returned “nulla bona. ” An action was then brought on the above-mentioned bond. Held, the dissolution of the attachment had the effect of annulling the bond, and that no action could be brought on the same.

Error to common pleas, Lancaster county.

Debt, by Henry C. Butcher and others, trading as Washington Butcher’s Sons, against John Fernau and others. The facts of the case are fully set forth in the opinion Of the court. The court below entered judgment in favor of plaintiffs, whereupon defendants tOOk this writ.

John Lynch, for plaintiffs in error.

The attachment having been dissolved, all the proceedings in attachment became of no effect, and the bond was not forfeited. Sedgwick’s Appeal, 7 \Vat-ts & S. 263; Hastings v. Quigley, 2 Clark, 431; Lantz v. Worthington, 4 Pa. St. 153; Bain v. Lyle, 68 Pa. St. 60; Hagan v. Lucas, 10 Pet. 400; Lehman v. Berdin, 6 Reporter, 611. The giving of the bond did not preclude defendant from subsequently moving to dissolve the writ. Garbutt v. H anfi‘,