Meerholz v. Sessions.

At the time this agreement was made, Hall had no license. Whether the defendants knew that fact, or supposed he had a license, is not shown by the proof. But from the proof, it seems clear that Hall was to attend to the renewal of the license. This he attempted, but the Court refused to grant him the license, for want of proof of notice having been given. It appears that Hall failed to obtain a license, from his own negligence, and from no fault of the defendants. Finch then waited four months for Hall or his assignee to procure the license. But no further effort was made by Hall or Crosby. In the meantime, defendants were violating the law at their own risk, by keeping a ferry without a license. From the testimony, it appears most probable that Hall did not intend to make any further effort to procure the license. He sold to Crosby the sixth of November, 1854, for one hundred dollars. At this time, the ferry was largely indebted to defendants for their advances. The prospect of paying this amount, with two and one-half per cent. interest per month, and the expenses of keeping the ferry, was certainly not very good. After the interest of Hall was assigned to Crosby, the latter made no effort to procure a license. The failure to carry

out the agreement was on the part of Hall and Crosby. The defendants waited as long as they should have done, under the circumstances.

Decree affirmed.

MEERHOLZ v. SESSIONS.

Where the statement embodied in the record is filed on a motion for a new trial, this Court will only examine the action of the Court below in denying the motion.

This Court will not hear any objections to an order entered in the Court below, by consent of parties.

APPEAL from the District Court of the Twelfth Judicial District, County of San Francisco.

H. S. Love for Appellant.

McDougall & Sharp for Respondent.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BURNETT, J., concurring.

The statement embodied in the record was filed on the motion for a new trial, and we can only examine the action of the Court

Tissot v. Darling.

below in denying the motion. As the order was entered by consent, we cannot hear any objection to it on appeal. Judgment affirmed, with twenty per cent. damages.

TISSOT AND WIFE v. DARLING et al.

An averment in the complaint, in a suit on an appeal-bond, that execution had been issued on the judgment and returned unsatisfied, is unnecessary. The non-payment of the judgment can be shown without issuing an execution.

The objection that an undertaking on appeal was not signed by the principal, has beer decided by this Court in the case of Curtis v. Richards & Vantine, January Term 1858.

Where suit is brought in the name of the husband and wife, and no objection is made t♦ the joinder of the wife, and judgment is obtained, and afterwards defendants execut an undertaking on appeal to the husband and wife, and suit is afterwards brought or the undertaking, in the name of the husband and wife: Held, that the defendants ar concluded by the acts of appellant, and that the wife is properly joined in the suit on the undertaking.

APPEAL from the District Court of the Twelfth Judicial Dis trict, County of San Francisco.

This was an action instituted by plaintiffs against William A. Darling and P. Warren Van Winkle, sureties in an undertaking on appeal, to recover the amount of the judgment from which the appeal was taken. The undertaking is entitled "In the case of Paul Tissot and Natividad de Haro, his wife, v. Samuel R Throckmorton." After reciting the judgment and the appea therefrom, etc., it proceeds as follows:

"And whereas the appellant is desirous of staying the execu tion of the said judgment and order so appealed from, we de further, in the consideration thereof and of the premises, jointly and severally, undertake and promise, and do acknowledge our selves further jointly and severally bound in the further sum of five thousand three hundred dollars, ($5,300, being double the amount named in the said judgment,) that if the said judgmen and order appealed from, or any part thereof, be affirmed, the appellant shall pay the amount directed to be paid thereby, o the part of said amount, as to which the same shall be affirmed. if affirmed only in part, and all damages and costs which shal be awarded against the appellant upon the appeal."

The complaint alleges that the judgment and order appealed from were affirmed by the Supreme Court, and that a remittitur was duly issued and filed in the Court below, that payment o the judgment was demanded of Throckmorton, that he neglected and refused to pay the same, or any part thereof, and that the amount of the judgment is due and unpaid, and that plaintifi

Tissot v. Darling.

are the legal owners thereof, and concludes with a prayer for judgment. The original judgment against Throckmorton was obtained on a note given to Tissot and wife for the purchase of certain real estate which she inherited from her father before her marriage.

The defendants demurred to the complaint on three grounds: 1. That the plaintiffs have not the legal capacity to sue. 2. That there is a defect of parties plaintiff.

3. That the complaint does not state facts sufficient to constitute a cause of action.

The demurrer was overruled and the defendants answered, admitting the execution of the undertaking, but alleging payment of the judgment. The defence on appeal, is the same as that set up in the demurrer.

Plaintiffs had judgment, and defendants appealed.

D. W. Perley for Appellants.

The question then is, does the complaint state a good cause of action.

The appellants contend it does not, for the following reasons: 1. The action is on an appeal-bond, and there is no averment that any execution was ever issued on the judgment appealed from.

By section three hundred and forty-eight of the Practice Act it clearly appears that the undertaking of the sureties is only collateral. They undertake, not that they will pay the judg ment in case it be affirmed, but that the appellants will pay it. The judgment-creditor must exercise ordinary dilegence, at least, to collect the judgment from the principal before he has a right of action against the sureties.

This diligence could be only shown by an execution issued and a return of nulla bona; without showing that, he does not show a cause of action.

2. The undertaking is defective and void, because it was not signed by the appellants, and there can be no right of action upon it against the sureties.

The language of the three hundred and forty-eighth section of the Practice Act, above cited, requires that the bond or undertaking shall be executed on the part of the appellants, with two sureties, etc. The sound and fair construction of this, is, that the appellant himself shall execute the bond as principal, with two other persons as sureties.

That was not done in this case, the sureties alone executed it, and there is no obligation on the part of appellants themselves, and they are not bound.

Suppose the sureties have to pay the judgment, they ought to have an action over against the principal, but that they could not have in this undertaking, for he is no party to it.

Tissot v. Darling.

By the civil law, from which most of the common law doctrines in regard to sureties is derived, it is laid down, that from the very nature of the obligation of a surety there must necessarily be an obligation on the part of him for whom the surety

undertakes.

"If there be no obligation the surety is not bound." Burge on Suretyship, p. 6.

In Mississippi the statute in respect to appeal-bonds was in the following words:

"Any person who may conceive himself aggrieved by any judgment, order, or decision, of the Court of Probate, may have the liberty of appealing to the High Court of Errors and Appeals, upon the appellant giving bond, with good and sufficient security, approved of by said Court, in such sum as they shall direct, to the Judge thereof."

This statute, in the point now under consideration, differs but little from the language of our statute. There is really no diference between "the appellant giving bond with good security," and "an undertaking executed on the part of the appellant with good sureties," etc.

But in Mississippi it was held, that a bond given by the sureties alone, was not the undertaking required by the statute, and was insufficient to sustain an appeal. Porter v. Grisham, 3 How., 75; Hardway v. Biles, 1 S. and M., 675.

See the following authorities on the same point:

An appeal-bond, executed by a surety only, without a principal, is not sufficient in law. Day v. Pickett, 4 Munf., 104; Miller v. Blannerhasset, 5 Munf., 197; Rootes v. Holliday, 4 Munf.,

323.

The same doctrine has been held in New York.

The bond must be executed by some of the parties appealing. Ex parte Anna Brooks, 7 Cowen, 428.

The complaint is also defective in another respect.

It appears that one of the plaintiffs is a married woman, and there is no averment that the action in any way concerns her separate estate. In fact, there is nothing whatever alleged to show that she is either a proper or necessary party to the action.

But this point will be more fully discussed under the second and third grounds of demurrer, which will be considered together.

This is an action brought by husband and wife and can only be sustained on the supposition that the wife is beneficially interested in the subject-matter of the action.

If she is not thus interested, or if it shall appear that the whole legal interest in the subject-matter of the controversy is vested in the husband, then the wife was irregularly and improperly joined, and the demurrer should have been sustained.

Tissot v. Darling.

It is true the undertaking was executed to the husband and wife, but this alone does not vest any interest in her, whatever. If the matter did not arise out of, or concern her separate property, she has no right of action, whatever, in the instrument. The husband alone could sue.

To show this clearly, it is necessary to examine the rights of husband and wife, and the disability of the wife, both by the common law, and also under our statutes.

By the common law, marriage was an absolute gift to the husband of all the wife's personal chattels, in possession, and a conditional gift of all her choses in action.

The condition was, that he should reduce them into possession during coverture, otherwise they would survive to the wife.

During coverture the legal existence of the wife was merged in that of the husband. The wife was incompetent to bind herself by any contract, and any interest acquired by her in personal property, enured immediately to the benefit of the husband.

In McNeilage v. Holloway, 1 B. & Ald., 221, Lord Ellenborough said, that a promissory note given to the wife may be treated by the husband as a personal chattel in possession.

The same doctrine is held in Massachusetts, in the following cases: Shuttleworth v Noyes, 8 Mass., 229; Com. v. Manley, 12 Pick., 173.

The principle of the above cases is that a promissory note given or endorsed to the wife in her own name, during coverture, was to be considered as absolutely reduced into possession, and would, therefore, go to the executor of the husband to the exclusion of her rights of survivorship.

In the case last cited it was held, that a promissory note given to a feme covert for her separate use, for the consideration of her distributive share in an intestate estate, becomes immediately the property of the husband. Com. v Manley, 12 Pick., 173.

By the common law, the earnings of the wife belong to the husband, and he only can give a discharge of them, and must sue for them in his own name, without joining his wife. Buckley v. Collier, Salk., 114; 4 Mod., S. C., 156.

The same principle applies to all property which accrues to a feme covert during coverture.

A legacy given to a wife vests absolutely in the husband, and he may release it either before or after it becomes payable.Com. Dig., Bar. & Fine, E., 3; Palmer v. Trever, 1 Verm., 261. The distributive share of a wife in an intestate estate vests in the husband. Robinson v. Taylor, 2 Bro. C. C., 589.

The moment a note is endorsed to a wife it becomes the property of the husband, and he alone could collect, transfer, or discharge it. Keith v. Wombell, 8 Pick., 211; Russel v. Brooks, 7 Pick.,

65.

In Barton v. Bishop, 1 East., 432, a note was given to a feme