Department 1. Appeal from superior court, Sacramento county.

W. H. Beatty and S. C. Denson, for appellants. Grove L. Johnson, for respondents.

Ross, J. The plaintiff Emma L. Smith, and her co-plaintiff, A. J. Smith, are husband and wife, and as such resided together in the house of the deceased, William Hicks, during which time Mrs. Smith rendered Hicks services as nurse, for the value of which this suit was brought. It is contended, on behalf of the appellants, that the claim for the services was not properly presented to the executors of the estate of Hicks. It was verified by Mrs. Smith, and presented in her name by her husband to the executors, and by them rejected. They claim that it should have been verified by the husband, and presented in his name; that the debt due by Hicks was due to A. J. Smith; and that it is indispensable to an action upon it that a claim for the amount should have been duly presented to the executors in his name.

It does not admit of doubt, we think, that the amounts due for the services rendered constituted community property. It is provided by section 162 of the Civil Code that "all property of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property;" and, by the next section, that "all property owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property." By section 164 it is declared that "all other property acquired after marriage, by either husband or wife, or both, is community property." An exception to this last general provision is made in favor of the earnings and accumulations of the wife while she is living separate from her husband, by virtue of section 169 of the Civil Code, which reads: "The earnings and accumulations of the wife, and of her minor children living with her or in her custody, while she is living separate from her husband, are the separate property of the wife."

It would be clearly contrary to these provisions of the Code to hold that all earnings and accumulations of the wife are her separate property. The exception cannot be extended by the courts beyond its fair scope. The provision that the earnings and accumulations of the wife while she is living separate from her husband are her separate property, plainly assumes that such earnings and accumulations as are not so acquired do not constitute the separate property of the wife, but are embraced by the general provisions of section 164, and constitute community property. It is true that, by section 168 of the same Code, it is provided that "the earnings of the wife are not liable for the debts of the husband;" but what should be considered earnings of the wife, and what debts of the husband, within the true meaning of that section, are questions that do not arise in this case.

The debt due from the deceased, Hicks, for the services rendered him by Mrs. Smith, being the community property of Mr. and Mrs. Smith, was there such a presentation of the claim for the amount to the executors of the estate of Hicks as would authorize a suit upon its rejection?

As has been seen, it was verified by the wife, and presented in her name by the husband. That the claim was sworn to by the person best acquainted with the facts surely cannot be good ground of objection to its verification. Undoubtedly it ought to have been presented in the name of the husband, since the amount due constituted community property, but it was presented by the husband in the name of his wife. Had the claim been allowed by the executors, he would have been estopped from presenting another claim in his own name for the same services; and having, with his wife, brought this suit upon the rejected claim, a recovery thereon would equally estop him. A claim for the services, properly verified, was presented to the executors, who rejected it, but without objection to the manner of its presentation. Suit hav

ing been brought thereon, plaintiffs proved the rendition of the services and their value, and recovered judgment. Ought the judgment to be reversed only because the claim was presented to the executors by the husband in his wife's name instead of his own? Under the circumstances of the case, we think not. The substantial rights of the estate have not been affected by the manner of its presentation, and we do not think a just judgment against it ought to be reversed on that ground.

The only other points relied on by the appellants for a reversal grows out of the fact that the deceased in his will made a bequest to Mrs. Smith, of $3,000, “in consideration and in payment for her kind care and attention during my last sickness." It is said that the bequest was intended as full compensation for the services rendered by Mrs. Smith, and that it has not been renounced. The answer to this is that her action in respect to the claim was an election on her part not to rely upon the bequest; and upon the distribution of the estate the rights of the executors, and of all interested therein, can be properly and appropriately protected.

Judgment and order affirmed.

CARLON v. DIXON and another.

(Supreme Court of Oregon. December 13, 1886.)

1. REPLEVIN-ACTION ON BOND-LIABILITY OF SURETIES-COSTS.

Where an action of replevin was brought to recover an article of property, and a judgment obtained which was afterwards reversed on appeal, the sureties on the bond are liable for the payment of the costs incurred in the original action.

2. SAME-ACTION-EXTENT OF LIABILITY.

In an action on a replevin bond the sureties are only liable to the amount of the penalty of the bond, and costs.

3. SAME-BOND-BREACH-PENALTY-INTEREST.

Where there is a breach of the condition of a bond in replevin, the penalty becomes in law a debt due, and the obligors may discharge themselves from liability on the bond, when the damages resulting from it exceed the penalty, by the payment of the penalty alone; but, if the damages in such case be not paid on the happening of the breach, it will bear interest until it is paid.

Action on replevin bond. Judgment for plaintiff. Defendants appealed. C. Ball, for plaintiff. W. R. Willis, for defendants.

LORD, C. J. This is an appeal from a judgment rendered in the circuit court upon a trial by the court without a jury. Briefly, the facts are these: William Britt brought an action in replevin against Carlon, the present plaintiff, claiming the delivery to him of a horse which was in the possession of Carlon. To entitle and secure to Britt the immediate delivery of the property, the defendants, Dixon & Dixon, executed an undertaking as sureties for double the value of the property, "For the prosecution of said action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff," as prescribed by the Code. The horse was then taken by the sheriff, and thereupon the plaintiff gave the undertaking as prescribed in such Code, and the sheriff redelivered the horse to him. The action proceeded to trial, and Britt obtained judgment, whereupon Carlon, the present plaintiff, appealed to the circuit court, and the judgment was reversed, and a judgment rendered in favor of him, for his costs and disbursements, taxed at $512.20. This action was brought on the undertaking of the defendants, Dixon & Dixon, given in the action brought by Britt, above mentioned, to recover the amount of costs adjudged to him in that action. The penalty in the bond or undertaking of the defendants, for double the value of the prop

erty, was fixed at $250. There are but two questions which we are required to consider on this record: (1) Are the defendants liable on their undertaking for costs? and (2) what is the extent of the liability after default?

The liabilities of sureties on replevin bonds for the payment of costs incurred in the original action has been so often adjudged that the question ought to be deemed settled. In New York, where the provisions of the Code in respect to the matter are identical with our own, it has been adjudged that the sureties are liable, on their undertaking given in accordance with section 209, for costs. In Tibbles v. O'Connor, 28 Barb. 539, a case upon all fours as to the facts in hand, the court say: "This is a clear case for the plaintiffs. The undertaking provided, among other things, for the payment to the plaintiffs in this action of such sum as might for any cause be recovered against the plaintiff in that action. The 209th section of the Code required that the undertaking should contain that provision. These plaintiffs have secured these two sums in that action. They are clearly within the undertaking of the statute." And this decision has been approved by later authorities in that state. In Hinckley v. Kreitz, 58 N. Y. 588, CHURCH, C. J., in referring to it, said: "Tibbles v. O'Connor, 28 Barb. 538, was upon an undertaking in behalf of the plaintiff in an action upon a claim and delivery of personal property, conditioned, among other things, for the payment of such sum as might for any cause' be recovered in the action. The court held that the costs recovered upon appeal were covered by the undertaking, as they clearly were." Letson v. Dodge, 61 Barb. 128.

At common law, where the bond was conditioned to prosecute the suit with effect, and for a return of the goods in case a return shall be awarded, the sureties were liable for costs. Gainsford v. Griffith, 1 Wms. Saund. 58, note 1; Branscombe v. Scarbrough, 6 Adol. & E. (N. S.) 13; Balsley v. Hoffman, 13 Pa. St. 606. At one time it was thought that the condition of such bond was alternative, and that the effect of rendering either impossible was to discharge the surety, (Kimmel v. Kint, 2 Watts, 431;) in a word, that the condition of the replevin bond is simply for the return of the goods in event of a judgment de retorno habendo being rendered against the plaintiff in the action of replevin, and for which alone the surety was responsible; and some such notion seems to have prevailed in the case here. But in Gibbs v. Bartlett, 2 Watts & S. 33, the doctrine of Kimmel v. Kint, supra, was overthrown, and numerous cases cited to show that the undertakings stipulated by the bond constitute distinct and independent conditions, and that a breach of any of them worked a forfeiture. In Tibbal v. Cahoon, 10 Watts, 232, the defendant had retained the goods under a claim of property, which being found for him, he was also held entitled to recover the costs in an action on the bond, though there was no judgment de retorno. "If it were held," said KENNEDY, J., "that the surety is not liable on the clause, to prosecute his suit with effect, for the costs adjudged to the defendant, upon failure of the plaintiff to prosecute the suit with success, the clause, though full of meaning and force, would be thereby rendered wholly useless, and entirely inoperative." Applying this language in Balsley v. Hoffman, supra, BELL, J., said: "Now, as, in this instance, the goods replevied have been retained by the defendant, the only damnification suffered by him was in the costs to which he had been put, and, as these could only be reached under the clause for effective prosecution, the decision would seem to be directly in point to show the iabilities of the parties in the bond to answer, at least to the extent of the penalty, the damages recovered by the defendant in the first action." But the authorities do not stop here. See, also, Thomson v. Joplin, 12 S. C. 581; Morris, Repl. 265; 2 Suth. Dam. 43.

But the more difficult question here is whether the judgment can be given on a replevin bond against the sureties for more than the penalty and costs; that is to say, whether interest can be recovered, beyond the penalty, from

the time of the breach of the condition. In Hefford v. Alger, 1 Taunt. 218, it is held that the sureties in a replevin bond are together liable only to the amount of the penalty in the bond, and the costs of suit on the bond. "It is not to be disputed," said TINDAL, C. J., "that the sureties singly would be liable to the amount of the penalty of the bond; and in Hefford v. Alger, 1 Taunt. 218, which is subsequent to Evans v. Brander, 2 H. Bl. 547, it was held that the two together are liable to no more. After that decision in this court, we ought not to throw the matter open again, by laying down a different rule for the sheriff, who is responsible on the failure of the sureties.” Paul v. Goodluck, 2 Bing. N. C. 220. The general principle, as stated, is that on a penal bond a judgment cannot be recovered beyond the penalty. Wilde v. Clarkson, 6 Term R. 303; Branscombe v. Scarbrough, 6 Q. B. 13; Clark v. Bush, 3 Cow. 151; Farrar v. U. S., 5 Pet. 372. Mr. Morris says: "The liability of the surety in replevin is limited by the penalty of the bond. The preceding observations show that his liability may be less than that amount; it cannot exceed it." Morris, Repl. 268, cites Hunt v. Round, 2 Dowl. 558; Ward v. Henley, 1 Younge & J. 285; Gould v. Warner, 3 Wend. 54.

In the case in hand the judgment was rendered in the replevin suit for costs, May 21, 1883, and the liability of the defendants then became fixed. The judgment was for an amount which exceeded the penalty of the bond; but, as we have seen, the defendants could have discharged themselves by the payment of the amount of the penalty. They neglected to do this, and necessitated the action on the bond. The court below found that the defendants were liable on their undertaking in the sum of $250, the amount of the penalty, with legal interest from May 21, 1883; and that the plaintiff was entitled to a judgment against the defendants for that sum, with such interest, and rendered judgment accordingly.

At the argument it was claimed by counsel for the plaintiff that the condition of the undertaking was such as to cover the entire amount of the judgment in the replevin action, and that, therefore, judgment on the undertaking might be for an amount in excess of the penalty fixed by that instrument. But this is untenable. The sureties are only liable to the amount of the penalty of the bond and costs. The penalty is that sum which the sureties bind themselves and agree to pay when a breach of the condition occurs which is a part of their obligation.

The more difficult and disputed question is whether, after breach of the condition, the sureties are liable for interest for the delay in payment, by way of damages for the breach. In Fraser v. Little, 13 Mich 198, the authorities, both English and American, are reviewed by CAMPBELL, J.; and the result he reaches is that interest cannot be recovered on the penalty. Referring to Brainard v. Jones, 18 N. Y. 35, in which it was held that interest was recoverable for withholding payment after default, he says: "It is in direct conflict with the mass of decisions, and in conflict with the principle which underlies them all, that a penalty is not to be enlarged under any circumstances, and will not be enforced beyond its letter." But the force of this decision is greatly broken by the dissenting opinion of CHRISTIANCY, J., which is in general accord with the doctrine of the law as held in New York, Massachusetts, Kentucky, and perhaps some other states. In Brainard v. Jones, supra, it was held that the recovery against a surety in a bond for the payment of money is not limited to the penalty, but may exceed it, so far as necessary to include interest from the time of the breach; and that, so far as interest is payable by the terms of the contract, and until default made, it is limited to the penalty, but after breach it is recoverable, not on the ground of contract, but as damages, which the law gives for its violation. COMSTOCK, J., said: "But when the sum claimed becomes a debt actually due from them, and they continue in default, the question, properly considered, is one of damages for

the delay. As the law imposing these damages finds its warrant, not in the terms of the contract, but in the rules of reason and justice, so it must follow that the same rules furnish the only restraint upon its power in such cases. The question, in short, is not, what is the measure of a surety's liability under a penal bond? but what does the law exact of him for an unjust delay in payment after his liability is ascertained, and the debt is actually due from him?" Formerly it was the rule, upon a breach of the condition, that the surety was liable for the entire amount of the penalty, although the loss or damage was insignificant. The breach worked a forfeiture, and the penalty fixed the liability. But this rule no longer prevails. If the loss or damage be less than the penalty, the liability is discharged by the payment of the amount of such loss or damage. The penalty merely fixes the maximum of the liability of the sureties or obligors, and they cannot be held liable for interest beyond the penalty of the bond, except for such interest as accrued from their own default in unjustly withholding payment. When the judgment is equal to or in excess of the penalty fixed in the bond, the sureties may discharge themselves from liability by the payment of the amount of such penalty; but, if they refuse so to do after breach of the condition, and persist in defending the suit brought to compel their performance, they will be liable for the penalty and interest by way of damages for unjustly withholding payment. In such case the penalty is an ascertained sum which is due; and, when withheld, like any other debt, ought to carry interest. It has been so held by this court in a case not reported, as I am informed by one of my associates. It is difficult to see upon what principle interest can be refused upon the penalty of a bond which is due, more than interest upon any other money which has not been paid when the creditor has become entitled to it. In Carter v. Thorn, 18 B. Mon. 488, it was held, upon the breach of the condition of a penal bond, the penalty becomes in law a debt due, and the obligors can discharge themselves from liability on the bond, when the damages resulting from the breach of the condition exceed the penalty, by the payment of the penalty alone; but, if the damages in such case be not paid on the happening of the breach, it will bear interest until it is paid. See, also, Hughes v. Wickliffe, 11 B. Mon. 202; Walcott v. Harris, 1 R. I. 404; Leighton v. Brown, 98 Mass. 516; Judge of Probate v. Heydock, 8 N. H. 493; Murfree, Official Bonds, § 609, and cases cited.

We think the court committed no error in allowing the interest. The plaintiff is entitled to his costs and disbursements of the court below, and, as both appealed to this court, each will pay his costs of his own appeal.

CONSENT TO PROCEEDING

(Supreme Court of Colorado. December 3, 1886.) 1. COURTS-FEDERAL COURTS-STATE COURT-ATTACHMENTAGAINST MARSHAL. Notwithstanding the rule that, when property is in the hands of a United States marshal under a writ of attachment issued from a federal court, his custody thereof cannot be interfered with by a sheriff acting under authority of process issuing from a state court, an action of replevin may be maintained in a state court against a United States marshal for goods so attached by him, when the pleadings show that consent of the federal court to proceed in the premises against its marshal was first obtained.1

2. SAME COMITY BETWEEN COURTS OF CONCURRENT JURISDICTION-ALLEGATION OF CONSENT IN COMPLAINT OBJECTION TO SUFFICIENCY AFTER VERDICT.

An objection taken to an allegation, in a complaint, of consent obtained from a federal court to proceed against its marshal in a state court for the recovery of goods attached by him under process issuing from the federal court, because it does not show that the consent referred to covered the particular suit in question, and

'See Connor v. Hanover Ins. Co., 25 Fed. Rep. 519 and note.