Tissot v. Darling.

covert, who carried on trade on her own account, to enable her to pay a debt by her contracted in her separate business. She endorsed it to her creditor, who commenced suit upon it. But it was decided that the action would not lie, because the note, when delivered to the wife, became the property of the husband, and that he alone could endorse it.

In Com. v. Manley, 12 Pick., 175, it was held, that even if a wife's distributive share of an estate was to be treated like a chose in action, yet when a note was given for it, that would be equivalent to a reduction of it to possession, and the note, as soon as delivered to the wife, would become the property of the husband.

The above authorities clearly show that the entire interest in the bond sued on would, by the common law, be vested in the husband; that he alone could release or discharge the obligation; that the wife would have no right of survivorship, and that, in the event of the husband's death, the property would go to his executor, and not to her.

It is also clearly shown that this bond, when executed and delivered, became a personal chattel, in possession of the husband.

The appellants now contend that the above rules of law prevail in this State, except where they are expressly altered by statute, and that the statute has not altered the common law in respect to the points involved in this case.

By section two of the act defining rights of husband and wife, (Comp. L., 812,) it is provided that all property acquired after marriage, by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property.

Section nine provides, that the husband shall have the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate.

By this statute it clearly appears that the undertaking now sued on, being acquired after marriage, was common property, and that the entire and absolute right of disposition thereof was as completely vested in the husband as it was of his own separate property.

If this be so, then there was no shadow of right of action in the wife, and the Court erred in overruling the demurrer.

In the case of Snyder v. Webb, 3 Cal. R., 83, this Court decided that a married woman had no right of action on a lease made by her, because it did not appear, from the complaint, that the action concerned her separate property.

The plaintiff was nonsuited in the Court below, and the judgment was affirmed on appeal.

Mr. Brooks, who now prosecutes this action, defended, in the case of Snyder v. Webb, and the Court is referred to his argument in the case, showing that he then maintained the same

Tissot v. Darling.

grounds now contended for by appellants, and these grounds were fully sustained by the Court.

The second point relied on by appellants is the error of the Court in overruling the motion to nonsuit.

The case of Snyder v. Webb, 3 Cal. R., above cited, shows that this motion should have been sustained.

The third point, in regard to overruling the motion for a new trial, it is unnecessary to discuss.

The last point relied on by appellants is, that, upon the agreed statement of facts, the defendants were entitled to judgment. The original judgment appealed from was obtained on a promissory note, given by S. R. Thockmorton to Mrs. Paul Tissot.

The action was brought by husband and wife, but no demurrer was interposed in the Court below. On appeal, it was contended that the wife was an improper party, but the Court held that it was too late to make that objection in the Appellate Court, but intimated that if the point had been made by demurrer, it would have been sustained. Tissot v. Thockmorton, 6 Cal. R., 471.

It has been shown, by all the authorities cited, that the property in the note, originally given to the wife, vested absolutely in the husband-a fortiori the right of action, on the undertaking given to husband and wife, vested in him also. The judgment obtained by Tissot and wife, being common property, and subject to the absolute disposal of the husband, he could release or discharge it, or it might be levied on and held by a creditor of his to satisfy a demand against him.

Brooks for Respondents.

The counsel in his argument took these grounds:

1. The misjoinder of the wife.

2. That execution should have issued against Throckmorton. The defendant demurred to the complaint on the first point, the misjoinder of the wife, and his demurrer was overruled, and he had leave to answer, and he answered.

but

But I have no doubt that the wife was not only a proper a necessary party. In this case the note given by Throckmorton to the wife upon a purchase of her separate property can only be considered as a substitute in the place of the property, and is still the property. It is but a change of form, and the undertaking given as the security for the payment thereof is but collateral and follows the nature of the original or principal debt.

"If in respect of a contract made with the wife dum sola, the party thereto after the marriage give a bond to the husband and wife, or in respect to some new consideration, as forbearances, make a written or parol promise to the husband and wife, they may join. 1 M. & S., 180; 4 T. R., 616; 1 Salk., 117; L. Ray.,

368.

"When the wife can be considered as the meritorious cause of

Tissot v. Darling.

action, as if a bond or other contract under seal, or a promissory note be made to her separately or with her husband, she may join with her husband.'

1 Ch. Pl., 30, citing 3 Ser., 403; Stro., 230; 4 T. R., 616; Co. Lit., 35, note 1, 120; 2 M. & S., 393, 395; Bacon Abr., tit. Baun v. Tenk, says:

"In those cases where the debt or cause of action will survive to the wife, the husband and wife are regularly to join in the action." And in the case of Draper, Administrator, v. Jackson and Wife, 16 Mass., 480: When the plaintiffs intestate joined in a conveyance of the wife's land, and the grantee executed a promissory note to the husband and wife, together with a mortgage as collateral security, it was held that it survived to the wife. Reeve's Dom. Rel., is to the same effect.

I might multiply authorities on this head to any extent. But I don't find any authority to the contrary, and the authorities agree that when a written promise is made to husband and wife they may always join in the action. I say may, for I don't contend that at common law they must join, but as Bacon says: "Where the cause of action would survive to the wife they ought to join." And I have shown that this does survive. And Chitty says, page 30, "In the case of a bond or note payable to her, or to her husband and herself, it would sufficiently appear from the instrument itself as set out in the declaration, without further averment, that she had a peculiar interest justifying the use of her name as plaintiff." Citing 2 M. & Sel., 393, 396. And so for all profit coming from the separate estate of the wife. Chitty 31, and cases cited.

Indeed, in the first action upon the note, I had a doubt whether I had a right to join the husband, the action being of the separate property for which our statute (Prac. Act, § 7) permits her to sue alone. But I thought it safer to join the husband, as the statute does not forbid it. The case of Snyder v. Webb did not decide anything to the contrary. That was to the effect that the common law disabilities subsisted except to the extent expressly taken away by statute, and other cases in this Court to the same effect. In the former appeal (Tissot v. Throckmorton,) the Court said, the point was waived, coverture must be plead in abatement. There was no necessity of passing upon the question of whether the wife ought to join. The complaint should show an interest in the wife, and it does. 1 Chitty, 30.

In regard to the execution. There was no necessity of issuing an execution against the defendant in that suit. There is no such condition in the undertaking, and the point has been frequently decided. "Unless by the terms of the contract a request is necessary, no demand need be averred or found." 1 Chitty Pl., 328, 331; Chitty on Contracts, 628, 29, 456, 466; Seymour v. Van Slyck, 8 Wen., 403; Reed v. Curtis, 7 Greenleaf, 186; Mann

Tissot v. Darling.

v. Eckford's Ex'r, 15 Wen., 502; Sickleman v. Thistleton, 6 Maul· & Sel., 9. In Suncer v. Walker, 5 Gill & Johns. M. R., 102, it was held that the plaintiff might proceed with a fi. fa. upon his judgment, and at the same time sue the appeal-bond. In Teal v. Rice, 2 Green., 444, the Court held that in a suit against a surety upon an appeal-bond it is not necessary to aver that the debt and costs have been demanded of the principal before action brought. And in Stanley v. Lucas, Wright, 44, it was held that it was no bar to a suit on bond that the officer who held the execution was informed that appellant had sufficient property on which the execution might be levied. And to the same effect is Pevey v. Sleight, 1 Wen., 518.

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

Suit upon an undertaking on appeal. Defendants demurred. Demurrer overruled. Defendants then answered, and plaintiffs had judgment, from which defendants appealed.

The undertaking was executed by defendants, in the case of Tissot and Wife v. Throckmorton, (6 Cal. Rep., 471,) which was a suit upon a note executed by Throckmorton to Mrs. Tissot, during the marriage.

The first objection is that there is no averment in the complaint that execution was issued upon the judgment against Throckmorton.

When, by the terms of the contract, express or implied, a request or demand constitutes a condition precedent to the bringing of the suit, then it must be averred. (1 Ch. Plea., 328, 330.) But there is nothing in the undertaking making a request necessary. The defendants bound themselves that the appellant should pay the judgment. The non-payment of the judgment can be shown without the issuing of an execution. (15 Wend., 502; 5 Gill and J., 102; Nickerson v. Chatterton, 7 Cal. Rep., 573.)

The second objection is that the undertaking was not executed by Throckmorton, but only by the defendants. This objection has been decided by this Court not to be well taken. (Curtis v. Richards & Vantine, January, 1858.)

The third objection is not well taken. The note upon which the suit was brought against Throckmorton was executed to the wife alone, and the undertaking in that case was executed to the husband and wife. There was no proper objection made to the joinder of the wife with the husband in that case; and, by not making any such objection, Throckmorton admitted she had an interest in that suit, and the defendants are concluded by his act as to that matter. But besides this, the undertaking having been executed to husband and wife, she may join; and the un

19

People v. Edwards.

dertaking itself shows her peculiar interest in the suit without any further averment. (1 Ch. Plea., 30.)

There is nothing in the other points made by the counsel of defendants. The appeal seems to have been taken for purposes of delay, and the judgment is, therefore, affirmed, with ten por cent. damages.

THE PEOPLE v. EDWARDS et al.

Where there are amendments to a proposed statement on appeal, the draft proposed, and the amendments allowed, should be incorporated into one document, as in their separate form they cannot be regarded as any part of the record.

No averment of notice to the defendant is requisite in the complaint where the matters assigned as breaches lie as much in the knowledge of the one party as of the other. The defect in the approval of a sheriff's bond cannot be set up as a defence in an action on said bond against the sureties. The object of the law in requiring the approval, is to insure greater security to the public, and it does not lie in the obligors to object that their bond was accepted without proper examination into its sufficiency by the officers of the law.

The offices of sheriff and tax-collector are as distinct as though filled by different persons. The duties and obligations of the one are entirely independent of the duties and obligations of the other. They are not so blended that the bond executed for the faithful performance of the duties appertaining to the one would embrace, in the absence of the statute, the obligations belonging to the other.

The eighth section of the Act Concerning Official Bonds, which provides that every such bond shall be obligatory upon the principal and sureties therein, for the faithful discharge of all duties which may be required of the officer by any law enacted subsequently, applies only to the duties properly appertaining to his office as such, and not to new duties belonging to a distinct office, with the execution of which he may be charged.

The duties of sheriff, as such, are more or less connected with the administration of justice; they have no relation to the collection of the revenue.

The Revenue Act of 1854 made the sheriff ex officio tax-collector, and provided that he should be liable on his bond for the discharge of his duties in the collection of taxes. No other bond is required by law of the sheriff, except when he acts as collector of foreign miners' licenses: Held, that the bond in suit, entered into in 1856, must be deemed to have been executed in view of the provisions of the Revenue Act, and that all delinquencies in the collection of taxes, except foreign miners' licenses, are covered by the bond.

The defects in official bonds, which are cured upon their suggestion in the complaint, in an action upon such bonds, under the eleventh section of the "Act concerning the Official Bonds of Officers," are omissions which, but for the statute, would operate to discharge the obligors,

Where the obligors, in a sheriff's bond, bind themselves, jointly and severally, in specific sums designated, they may all be joined in the same action, but separate judgments are required.

APPEAL from the District Court of the Fourteenth Judicial District, County of Nevada.

A statement of the facts appears in the opinion of the Court. McConnell & Niles for Appellants.