41, Claims, Rejection of.-Where the executor neglected to indorse on the claim his allowance or rejection for more than ten days, it was held that it became a rejected claim on the expiration of the ten days: Rice v. Inskeep, 34 Cal. 225. The claimant of a rejected claim in recovering judgment thereon is entitled to interest from the time of presentment: Pico v. Stearns, 18 Cal. 377. Mortgage liens of record form no exception to the rule of claim: Ellisen v. Halleck, 6 Cal. 386. A claim of a surviving partner for advances to the partnership should not be presented till the partnership affairs are wound up: Gleason v. White, 34 Cal. 258. But a claimant of specific property need not present a claim: Gunter v. Janes, 9 Cal. 643.

42. Description of Party.—If the defendant is described in the caption of the complaint as administrator, it is immaterial, so long as the facts stated in the body of the complaint show he is not sought to be charged as administrator: People v. Houghtaling, 7 Cal. 350.

43. Forms of Complaint. —A declaration on a promise made by the defendant as administrator, must aver assets, in order to charge him personally de bonis propriis: Adams v. Whiting, 2 Cranch, C. Ct. 132. As to sufficiency of complaint against executrix, in her own wrong, which did not charge her as such: see Harper v. West, 1 Cranch, C. Ct. 192. Or of one which did not show by whom the letters are granted: Cawood v. Nichols, 1 Cranch, C. Ct. 180.

44. Legacy. In an action against executors for a legacy, plaintiff must aver and prove existing assets: Dewitt v. Schoonmaker, 2 Johns. 243. A legatee who has been represented by counsel at the allowance of accounts against the estate, will not be allowed, after a lapse of time, to come in and have the allowance set aside on a mere general averment of newly discovered evidence: Williams v. Price, 11 Cal. 212. In such a case it is not sufficient to allege ignorance at the time of allowance, but the plaintiff must go further and show that he could not, with the use of due diligence on his part, have made himself acquainted with, or ascertained the existence of the facts. Id.

45. Letters Testamentary.-If letters testamentary have not been issued, the defendant is not an executor: Thomas v. Cameron, 16 Wend. 579.

46. Louisiana.—In Louisiana, an action was brought by a creditor of a testator, against his executor, charging him with a devastavit, without averring proceedings to compel the defendant to exhibit a table of distribution, cannot be maintained: McGill v. Armour, 11 How. U. S. 142.

47. Non-Presentment.-But the non-presentation of a claim against the estate of a deceased person defeats only the present right to recover: Hentsch v. Porter, 10 Cal. 560. After failure in the District Court on account of nonpresentation, the claim may be presented, if within the statutory time; and if rejected, a new suit instituted which will not be barred by the former judgment. Id.

48. Possession of Estate.-In an action against an administrator, where the complaint alleges that he has taken possession of the real estate of the decedent, it will be presumed that it was legal possession: Butt v. Clark, 23 Ind. 548.

49. Presentment, Effect of.-The presentment of a claim to the administrator is the commencement of a suit upon it, and stops the running of the statute: Beckett v. Selover, 7 Cal. 215. They must be presented within the

1

time allowed, or they will not constitute a charge against the estate: Pico v. De la Guerra, 18 Cal. 422. And the statute fixes the limit at ten months when the estate exceeds in value ten thousand dollars, and four months when it does not: See Code C. P., secs 1491 and 1493; and this time does not commence running until a claim becomes absolute: Gleason v. White, 34 Cal. 258.

50. Promise. In an action against executors, plaintiff may, to save the Statute of Limitations, lay the promise as made by the representative: Whitaker v. Whitaker, 6 Johns. 112; Carter v. Phelps, 8 Id. 440. A complaint which alleges a promise by deceased, and also a promise by his adminis trators, though informal, is not bad on general demurrer, if it appears that defendants are charged in their representative capacity: Curtis v. Bowrie, 2 McLean, 374. Where the complaint did not state that the promises were made in the testator's lifetime, nor to him, nor for an indebtedness to him, nor to them as administrators, the action is in their individual and not in their representative capacity: Worden v. Worthington, 2 Barb. 368; see Merritt v. Seaman, 6 N. Y. 168. A complaint which shows only a personal liability cannot be sustained on demurrer: Bartlett v. Hatch, 17 Abb. Pr. 461.

51. Torts, Actions of.-No action can be sustained against an executor or administrator, as such, on a penal statute; nor when the cause of action is founded upon any malfeasance or misfeasance, is a tort, or arises ex delicto, such as trespass, false imprisonment, assault and battery, slander, deceit diverting a watercourse, etc., when the complaint imputes a tort done to the person or goods of another by the testator or intestate: 3 Williams on Executors, pp. 1728, 1729; People v. Gibbs, 9 Wend. 29; Eustace v. Juhns, 38 Cal. 3.

CHAPTER V.

HUSBAND AND WIFE.

No. 58.

i. Against Husband for Necessaries Furnished to Defendant's Family, without his Express Request, at a Reasonable Price.

[TITLE.]

he

,

The plaintiff complains, and alleges: I. That on the....day of........, 187., 187., at.... furnished to Mary Smith, the wife of defendant, at her request, sundry articles of [food and clothing], to wit:...... II. That the same were necessary for her maintenance, and suitable to her station in life.

III. That the same were reasonably worth ......dollars. IV. That defendant has not paid the same.

[Demand of Judgment.]

1. Husband, when Liable.—If a husband fails or refuses to provide a support for his wife, the law authorizes her to purchase from others on the credit of her husband, whatever is necessary for her maintenance, and suitable to her station in life: Galland v. Galland, 38 Cal. 265. It is not necessary to allege that the wife acted as the husband's agent, or with his consent. In nine cases out of ten these averments would be fictions of law, which must never be pleaded under the Code. The husband is liable in the proper cases, although he had expressly forbidden the plaintiff to trust his wife: 2 Kent's Com. 148; Sykes v. Halstead, 1 Sandf. 483; Civil Code, sec. 174.

2. Husband, when not Liable.-A wife who without cause, and against her husband's will, refuses to live with him, cannot bind him for necessaries to a third party, who knows that she is not living with her husband, and who sells to her without further inquiry: Brown v. Mudgett, 40 Vt. 68; Civil Code, sec. 175.

No. 59.

ii. Against Husband and Wife for Goods Sold, for her Separate Estate.* [TITLE.]

The plaintiff complains, and alleges:

I. That between the .... day of....

....day of.....

.........

187., at

187., and the the plaintiff sold and delivered to the defendant, A. B., who was then, and still is, the wife of the defendant, C. B., materials used for the building of a house for her, upon and for the benefit of her separate lands and premises, situated in the town of......, in the county of..... .., bounded and described as follows: [Describe the premises.]

II. That the said defendant, A. B., in consideration thereof, then and there promised the plaintiff that she would pay for the same........ dollars, out of her separate property, and did agree and intend that the same should be paid for out of her separate property.

III. That such materials are reasonably worth the said sum of........dollars, and that no part thereof has been paid.

IV. The plaintiff further alleges, on information and belief, that the premises above mentioned and described, were, at and before the....day of........, 187. [date of marriage], since have been, and now are, her sole and separate property, and the same are worth about........ dollars. Wherefore the plaintiff demands judgment.

1. That the separate property aforesaid be charged with

* This form is applicable to New York and some other States. The following, Form No. 60, is adapted to the practice in California.

..... dollars, with inter

the payment of the said sum of.......

est from..... together with the costs of this action. 2. That the said property be applied to the payment of the same.

3. That a trustee be appointed to take possession of her said separate property, and dispose of it, or of so much thereof as shall be necessary to satisfy the same.

No. 60.

iii. Against Husband and Wife for Goods Sold to the Wife for her Separate

[TITLE.]

Estate.

The plaintiff complains of the defendants, and alleges: I. That between the .... day of...... ....day of. . . . . . . . . and delivered to the still is the wife of C.

.,

day of........, 18.., and the 18.., at........, the plaintiff sold defendant, A. B., who then was and B., materials used for the building of a house for her, upon and for the benefit of her separate lands and property.

II. That said materials were of the agreed price and value [or were reasonably worth the sum] of...... dollars, and that no part thereof has been paid.

Wherefore the plaintiff demands judgment against the defendants for the said sum of. . . . . . . . dollars, and interest thereon from the....day of........, 18.., and costs of suit.

3. Charging Separate Estate.-A complaint under the New York practice, which directly alleges that the note was given by her for the express purpose of charging her separate estate with its payment, is sufficient on demurrer: 18 N. Y. 265; Francis v. Ross, 17 How. Pr. 561; Phillips v. Hagadon, 12 How. Pr. 17. So, it seems a complaint seeking to charge the separate estate of the wife, is bad, if it does not set forth the property and the nature of her interest: 3 Barb. Ch. 9; 20 Wend. 570; Sexton v. Fleet, 6 Abb. Pr. 8.

4. Common and Separate Property Equally Liable.-The separate property of the wife, and the common property of both husband and wife, are equally liable for the debts of the wife contracted before marriage: Van Maren v. Johnson, 15 Cal. 313. The statute changes the common law rule on this subject: Id. In an action against the husband and wife, on a sole debt of the wife contracted by her before marriage, a judgment may be rendered to be collected out of the common property of both husband and wife: Vlantin v. Bumpus, 35 Cal. 214; see Civil Code, cap. 3, Husband and Wife, secs. 158, 167, and 171.

5. Consideration.-If the debt is contracted for the benefit of the wife, or of her estate, no allegation of an intent to charge it on the estate is necessary: See Yale v. Dederer, 18 N. Y. 273, 284, 285. In New York, if the consideration

were not for the benefit of the wife or her estate, this allegation is necessary: Yale v. Dederer, 18 N. Y. 281. The agreement must be in writing: S. C., 22 N. Y. 450; but this need not be alleged in the complaint.

6. Coverture.-The fact of coverture has ceased to have any relation to the technical right of maintaining an action by a married woman in respect to her separate property, and the allegation of coverture in the complaint is not necessary: Peters v. Fowler, 41 Barb. 467.

7. Demand of Judgment.-To charge the separate estate of a wife in an equitable action in New York, the demand must be as in this form: Cobine v. St. John, 12 How. Pr. 333; Coon v. Brook, 21 Barb. 546.

8. Estate must be Shown.-The complaint must show what the estate is, and what is its value: Sexton v. Fleet, 6 Abb. Pr. 9; S. C., 15 How. Pr. 106; Cobine v. St. John, 12 Id. 336. But such is not the practice in California; for in this State the complaint need not set out any separate property of the defendant, because the wife was liable in personam before coverture, and under our statute continues so after marriage: Bostic v. Love, 16 Cal. 69; see, also, Foote v. Morris, 12 N. Y. Leg. Obs. 61.

9. For Benefit of her Separate Lands. From form in Dickerman v. Abrahams, 21 Barb. 551. The weight of the decisions is, that the acts relative to the rights and liabilities of married women in New York, enlarged only the power of married women to hold and convey their separate estate, but did not operate to subject them to new remedies on their personal contracts: Francis v. Ross, 17 How. Pr. 561; Gates v. Brower, 9 N. Y. (5 Seld.) 205: Switzer v. Valentine, 4 Duer, 96; Cobine v. St. John, 12 How. Pr. 333; Coon v. Brook, 21 Barb. 546. For other modes of pleading see Coster v. Isaacs, 16 Abbott's Pr. 328; Baldwin v. Kimmel, Id. 353; Young v. Gori, 13 Id. 13, note; Thompson v. Sargent, 15 Id. 452; Aitken v. Clark, 16 Id. 328, note. Under the California Code she may make herself liable without specially charging her separate estate: See chapter 3, Civil Code.

10. Form of Judgment.—There is no difference in the form of judgment though the execution is restricted: Laws of N. Y., 1853, p. 1057. For form of complaint on a note indorsed by the wife, while sole, before the delivery of the note to the payee, see Sexton v. Fleet, 6 Abb. Pr. 8; S. C., 15 How. Pr. 106.

11. Homestead.-A complaint by husband and wife to recover the homestead conveyed away by the deed of the husband alone, must aver either that the premises were occupied as a homestead at the date of the conveyance, or that they had not been previously abandoned: Harper v. Forbes, 15 Cal. 202. So a married woman cannot alone convey the homestead: Poole v. Gerard, 6 Id. 73.

12. Marriage.-A marriage de facto, although not legally solemnized, is sufficient at common law to render the husband liable for the previously contracted debts of the wife: Andr. 227-8; 1 Camp. 245; 2 Esp. 637. It is not material whether the marriage was solemnized, if the parties afterwards, and after the passage of the act, resided and acquired the property here: Dye v. Dye, 11 Cal. 163; see People v. Anderson, 26 Id. 129; Graham v. Bennett, 2 Id. 503; Letters v. Cady, 10 Id. 533.

13. Misjoinder of Causes of Action.-Claim for personal judgment against husband, and enforcement of a lien against wife's separate estate, are incompatible: Palen v. Lent, 5 Bosw. 713; Sexton v. Fleet, 2 Hilt. 477.