GAROUTTE, J. The defendant was convicted of the crime of sodomy, and his motion for a new trial was subsequently granted. The motion was granted upon the ground that the trial court committed error in not instructing the jury, at the request of the defendant, that under the evidence he might be convicted of a simple assault. There is some question made by defendant's counsel that the information charged specifically the offense of assault, in addition to the felony; but, in the absence of a special demurrer upon that ground, we think the matter of little importance. The offense of simple assault may or may not be an element in the felony designated as "sodomy." It is not an element of the offense where the crime is not committed with or upon a human being; and, secondly, it is not an element in the offense where the act is done or attempted with the consent of the other party. It therefore follows that in many cases the trial court is justified in refusing to instruct the jury as was here requested. This case is not one coming within the first class stated; and, as to the evidence of consent, we think it may well have been submitted to the jury, as a question of fact.

It is further argued that the evidence discloses either a commission of the felony, or establishes that the defendant is wholly innocent. Possibly the evidence might support such conclusion, if the prosecution had confined itself to facts occurring at a single time; but, for reasons not here perceptible, evidence was introduced as to circumstances of guilt arising upon two different occasions, and upon different days. The evidence failed to disclose the commission of a felony upon one of these occasions, at least, but possibly disclosed a simple assault. By reason of these facts the principle of law presented is enveloped in some confusion. But section 220 of the Penal Code in terms recognizes the offense of assault with intent to commit the crime here charged, and a simple assault is a necessary element in the offense named in said section 220. From all the facts here disclosed, we conclude the question of consent was an open one, which should have

1. A complaint to foreclose a mortgage showing that, at the time the mortgage was given, the debt was due and unpaid, need not further allege the nonpayment of the sum demanded.

2. A mortgage by a legatee of all her interest in the estate of the testator, executed after distribution, but referring to the administration files and records for a more complete description of the mortgagor's interest, authorized the court to decree a sale of land which afterwards vested absolutely in the mortgagor by reason of deeds of release from other legatees interested therein.

3. A mortgage by one of her interest in an estate "as child and heir at law" will cover the property she took under a will.

4. A promise made by a debtor, after being discharged in insolvency proceedings, to pay a debt contracted prior thereto, is binding on him.

5. A mortgage executed by a wife on her separate property to secure an antecedent debt for family supplies is without consideration where she, at the time the debt was contracted, lived with her husband, and her individual credit was not pledged, though the mortgage recited that she and her husband were jointly and severally indebted for the goods.

Commissioners' decision. Department 2. Appeal from superior court, Ventura county; B. T. Williams, Judge.

Action by W. S. Chaffee and others against A. W. Browne and wife to foreclose a mortgage. Plaintiffs had judgment, and defendants appeal. Reversed.

H. L. Poplin, for appellants. W. H. Wilde, for respondents.

BRITT, C. Action for the foreclosure of a mortgage made by defendants, A. W. Browne and his wife, Neotia Browne, in favor of plaintiffs, who are copartners in business under the firm name of Chaffee, Gilbert & Bonestel. The mortgage bore date December 10, 1890, but was not in fact executed until May 26, 1891. It recited that the mortgagors, residents of the county of Ventura, are jointly and severally indebted to the mortgagees in the sum of $1,442.47 for goods, wares, and merchandise theretofore had and received by them (the mortgagors) from said mortgagees; that said Neotia is a child and heir at law of Peter Rice, deceased, "whose estate is in administration in said Ventura county, and, as such heir at law, is the owner of an undivided interest in the estate of said deceased, and therein is and will be entitled to her share in said estate when the

same shall be settled and distribution thereof made, reference being had to the proceedings, files, papers, documents, and records of the administration of the estate of said deceased in the superior court in and for the county aforesaid, for a more full and complete description of property, rights, and credits of said estate, and the interest of said Neotia Browne therein"; that said Neotia desires to give to the mortgagees a mortgage lien upon her interest in said estate to secure payment of said indebtedness. It is then declared that in consideration "of the premises and of the indebtedness hereinabove named, justly due from the said A. W. Browne and the said Neotia Browne to the said Chaffee, Gilbert & Bonestel, I, the said Neotia Browne, the mortgagor, hereby * * mortgage to the * * mortgagees all and singular my estate, right, title, interest, claim, or advantage, of whatsoever kind or nature, that I have or may or can have in the estate of said Peter Rice, deceased, as a child and heir at law of the said Peter Rice, deceased, now being administered, * as aforesaid, to secure the indebtedness hereinabove named, together with the interest accrued and to accrue thereon." It was further provided that, in default of payment, the mortgagees might foreclose the mortgage, and have the interest of said Neotia in the property coming to her from the said estate sold to pay the amount due to them, etc.

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The fact was that Peter Rice left a will, which was probated in said superior court, and the interest which Mrs. Browne had in his estate was under the will, and not as heir at law in the technical sense; and previously to the execution of the mortgage, viz. on February 3, 1891, the estate of said Rice had, by decree of said court, been distributed to the persons entitled under the terms of the will in undivided shares. The decree was filed on said February 3d, and it specifically described the property distributed. Thereby a first interest of $1,000 in value was set over to one Lucretia Bell, and to Mrs. Browne was allotted an undivided one-fourth of the residue. Among the tracts of real estate thus distributed was a certain lot in the town of San Buenaventura. On March 17, 1893, plaintiffs, at request of the Brownes, released from the mortgage a part of the lands mentioned in said decree. Such release was signed by Browne and wife, as well as plaintiffs, and recited the indebtedness to plaintiffs much the same as in the mortgage. On April 4, 1893, the distributees named in such decree, for the purpose of making partition of the lands set over to them by the terms thereof, executed deeds among themselves, by virtue of which Mrs Browne became and is yet the owner of the whole of said town lot as and for her share of the lands before held in common. The court below decreed that this lot be sold for the payment of the expenses of the action and the amount due plaintiffs as provided in

the mortgage, and that plaintiffs have exe cution for any deficiency against Browne and wife. Defendants pleaded, among other alleged defenses and partial defenses, that the mortgage was executed by Mrs. Browne without consideration. The court found that, in the year 1889, A. W. Browne was indebted to plaintiffs in the amount of $593.93, for provisions, wearing apparel, and other family necessaries, which plaintiffs "had theretofore sold and delivered to said A. W. Browne and Neotia Browne, his wife"; that on June 26, 1889, said A. W. Browne made a transfer of certain property to plaintiffs and others, and plaintiffs, in consideration thereof, released the said indebtedness of A. W. Browne to them; that about July 1, 1889, A. W. Browne was adjudged an insolvent debtor, and thereafter, with his approval, plaintiffs delivered to his assignee for the benefit of his creditors all the property transferred to them as above stated on June 26, 1889, whereby their release of said sum of $593.93 owed by him was "made null, void, and no effect"; that after his discharge as such insolvent (which was granted April 21, 1890) said A. W. Browne promised to pay plaintiffs said sum of $593.93, notwithstanding his discharge in insolvency; that after July 1, 1889, and thenceforward until October, 1890, A. W. and Neotia Browne purchased of plaintiffs goods, etc., consisting of groceries, provisions, wearing apparel, and other family necessaries to the amount of $848.54, which goods were charged in account upon the books of plaintiff to A. W. Browne, but the greater portion thereof were in fact purchased by said Neotia; that on December 10, 1890, plaintiff's presented to A. W. Browne a memorandum containing the figures denoting the amount then due from him and his said wife, viz. $1,442.47, consisting of said sums of $593.93 and $848.54, and thereupon and thereafter Browne and wife promised to pay plaintiffs the sum of $1,442.47, "upon the account so stated between them"; that the mortgage in suit was executed to secure the payment of said sum last named, and was made for a good and valuable consideration.

At the trial the evidence regarding the question of consideration was in substance this: Mr. Chaffee, one of the plaintiffs, testified that the indebtedness was for "goods, wares, and merchandise furnished Mr. Browne and family, nine-tenths of it, at least, to Mrs. Browne. * The item of $593.93 was for merchandise sold A. W. Browne prior to July 1, 1889; and the books were balanced as to that account * * * on the 2d day of July, 1889, when the receipt was given on the 1st of July, 1889; and the account of A. W. Browne was continued right along until October 8, 1890. I never had any conversation with Mrs. Browne about it at any time. I had charge of the business during all that time. We never had any account on our books against Mrs. Browne. The account is A. W. Browne,

208, 9 N. W. 759, is yet stronger in the same direction. Before such a demand can be charged in equity upon the wife's separate estate, there must be clear proof that she contracted the debt in her own behalf, or intended to bind her separate estate for its payment. The fact that the husband is insolvent, or unable to sustain the whole charge of the family's support, does not affect the rule. Dodge v. Knowles, 114 U. S. 430, 5 Sup. Ct. 1108, 1197; Magee v. White, 23 Tex. 180; Haynes v. Stovall, Id. 625. The intention to extend the credit to the wife, and not to the husband, must be expressly declared or otherwise communicated to her. Rushing v. Clancy, 92 Ga. 769, 19 S. E. 711. In the present case the goods were all charged to the husband's account, and the wife's personal responsibility therefor was neither offered nor required before the whole debt had accrued.

But respondents claim that defendant Neotia is concluded by the recitals in the mortgage to the effect that she and her husband are jointly and severally indebted to plaintiffs for goods, etc., had and received by them from plaintiffs. Coles v. Soulsby, 21 Cal. 47, and other cases of like nature are cited in support of the proposition. The doctrine of those cases has no application here. It was always limited to the protection of the operative words of conveyance in a grant of property (Feeney v. Howard, 79 Cal. 530, 21 Pac. 984), and never extended to executory covenants even in the same instrument. To allow it effect as contended by respondents would be to forbid inquiry into the consideration of every promissory note recited in a mortgage given for its security, which is not the law. Jones v. Jones, 20 Iowa, 388. Said recitals, relating, as they do, to the consideration of the mortgage, do not estop. Code Civ. Proc. § 1962, subd. 2. Compare Moffatt v. Bulson, 96 Cal. 106, 30 Pac. 1022; Rosenberg v. Ford, 85 Cal. 610, 24 Pac. 779; Bayler v. Com., 40 Pa. St. 37.

It follows that in the execution of this mortgage the defendant Neotia Browne undertook to assume and secure her husband's antecedent debt. "No new consideration was given at the time it was executed. The wife received nothing. The husband received nothing. The creditor parted with nothing. The instrument was therefore no more than a collateral security given for an old debt of the husband" (Bayler v. Com., 40 Pa. St. 37), and was not obligatory in the absence of a new consideration (Civ. Code, §§ 2792, 2831, 2844; Bohm v. Hoffer, 2 Colo. App. 146, 29 Pac. 905). The judgment and order should be reversed, and the cause remanded for a new trial.

We concur: BELCHER, C.; SEARLS, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial.

(109 Cal. 236)

VERMONT MARBLE CO. v. BROW, Constable. (No. 18,397.)

(Supreme Court of California. Sept. 27, 1895.) SALE OR CONSIGNMENT-LEVY OF EXECUTION-NOTICE OF CLAIM BY THIRD PERSON.

1. A shipment of goods "on consignment" to one to whom plaintiff had previously been selling, to be held as the property of plaintiff and subject to its order until sold, the price at which they were listed to the consignee to be remitted as fast as they were sold, and, when he took notes in lieu of cash, these notes to be remitted as collateral for his account, does not constitute a sale.

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2. A consignment of monuments under an agreement that the consignee should keep an account of their sale in a book, and send such book to the consignor on the first of each month, and, "as fast as sold and erected, pay to" the consignor the list price to the consignee "of each piece sold by him," either by cash or customer's note, the same to be placed to his credit as fast as cash should be received, the monuments to be paid for when sold, and remaining the property of the consignor "until paid for as above," and at all times subject to its order, does not constitute a sale.

3. A written claim of property in goods about to be levied upon under execution, which states that the claimant is the owner of the property, and had delivered it for purposes of sale, and that it was so held when seized by the sheriff, and not otherwise, sufficiently complies with Code Civ. Proc. § 689, as to the manner of "setting out the title" and "stating the grounds" of title.

Commissioners' decision. Department 2. Appeal from superior court, Yuba county; E. A. Davis, Judge.

Action by the Vermont Marble Company, a corporation, against E. Brow, as constable, to recover the value of certain monuments sold by defendant under writ of execution against the property of one Plymire. There was judgment for plaintiff, and defendant appeals. Affirmed.

Forbes & Dinsmore, for appellant. W. H. Carlin, for respondent.

BRITT, C. Defendant was constable of Marysville township, in Yuba county, and was sued in this action by plaintiff, a corporation, for the value of certain marble monuments sold by him July 10, 1893, under writs of execution issued from the justice's court of said township against the property of one Plymire, upon judgments obtained there by creditors of Plymire. The chief question involved is whether the marble when levied upon and sold was the property of plaintiff or of said Plymire. The latter had a marble shop at Marysville, and was a dealer in funeral stones and monuments. He had been accustomed for several years to purchase from plaintiff unfinished monuments and other marble needed in his business, and on July 19, 1892, he was in plaintiff's debt some $2,500 for such materials purchased previously to that time, and plaintiff was apprehensive that further sales to him outright would involve loss. To prevent this, Plymire agreed in writing with the marble company, on the date last mentioned, that, in consider

ation of its sending to him certain specified monuments "on consignment," he would hold the same as the property of the company until sold, and subject to its order; that, as fast as he sold the monuments, he would remit the money (the cost price at which each was listed to him); and, when he took notes in lieu of cash, he would remit the notes as collateral for his account. Subsequently, in May, 1893, Plymire agreed with plaintiff for a further consignment of goods, specifically described, written memoranda of which agreement provided in substance that he should keep an account of the sale of the monuments described in a book, and send such book to the marble company on the 1st of each month, and, "as fast as said work is sold and erected," pay to the company the list or cost price to him of each piece of marble sold by him, "either by cash or customer's note," the same to be placed to his credit as fast as cash should be received; that he held the marble merely on consignment, to be paid for when sold; and that it remained the property of the marble company "until paid for, as above," and at all times subject to its order. Ten monuments, of the value of $683, were converted by defendant, as the court found; and of these three had been delivered to Plymire under his arrangement with plaintiff of July, 1892, and seven under that of May, 1893. By the terms of an oral agreement, not embodied in said written memoranda, Plymire promised that, whenever he received payment from a customer for a monument, he would pay plaintiff an additional sum of 25 per cent. on the cost price charged him for the same by plaintiff, which further percentage was to be applied on his indebtedness of $2,500 existing before July, 1892. The debts on which the judgments mentioned were recovered against Plymire accrued prior to the receipt by him of any part of the goods in controversy. Plymire, it was further understood, would take orders for and sell the marble in his own name. He had the right to fix the selling price and the terms of sale. He was to bear the cost of transporting the marble from San Francisco to Marysville. Apparently the marble company exercised no control over his business. The monuments, when seized by defendant, were in the same condition as when received by Plymire from plaintiff, he having done no lettering or other work on them. Plymire testified at the trial: "I was not to sell these monuments in the same condition that I received them. * I have to sell them first, and then put on the inscription. * If a man wanted a design, I showed him a style of monument, and told him what it would come to when finished and set up; found out how he wanted it lettered, whether he wished any further design carved on it, and then fixed it up, put a bottom base on it, set it up, and then took the money for it." Before the execution sale, plaintiff demanded the property of defend

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ant, the particulars of which demand appear in another connection.

Appellant contends that the facts stated evidence a sale on credit, in which the title to the goods passed at once to Plymire, andthey thus became liable to execution for his debts; and it is said that it is "unmeaning for parties to a contract to say it shall not amount to a sale when it contains every element of a sale." This latter proposition is doubtless correct. The transaction must be judged by the intent of the parties to it, gathered from the whole scope and effect of their language and their explanatory conduct. Mere verbal formulas are to be disregarded if inconsistent with a specific intent thus manifested. But, looking at the facts in the light of this principle, we find no transmission of title to Plymire. "Mere transfer of possession, without the agreement, express or implied, that such transfer is a sale, on the one hand, and a purchase, on the other, will not be a sale or have the effect to transfer the title." Borland v. Bank, 99 Cal. 94, 33 Pac. 737. We consider that the true nature of the transaction was that of a sale upon condition; the condition being, as to each monument, that Plymire should sell the same to some third person. Until then he was under no obligation to pay plaintiff the cost price, and until then he was compellable to surrender the goods to plaintiff upon de mand. When he sold a monument, he was precisely within the case put by Mellish, L. J., in Ex parte White, 6 Ch. App. 397, 405: "If A. hands over his goods to B., and B. is to pay him a certain price if he sells, but is at liberty to sell on what terms he pleases, and B. then sells to C., the natural inference from these facts is, beyond all doubt, that there is a sale made to B. and another sale from B. to C." But obviously there is no completed sale to B. until he sells to C. This is illustrated in Nutter v. Wheeler, 2 Low. 346, Fed. Cas. No. 10,384. There W. & Co. were in the habit of sending their manufactured goods to one Gear, in Boston; and Gear sold them at such prices and on such terms as he pleased, not less than the trade prices fixed by W. & Co. Whenever he made a sale, he was to pay W. & Co. in 30 days the prices shown in their list to him, less an agreed discount. After a sale was made by him, his credit only was looked to by W. & Co. Gear became bankrupt, and W. & Co. took back the goods of their manufacture in his shop unsold. The court said: "Until a sale was made, the property in the goods remained in the defendants [W. & Co.], and they were well justified in reclaiming those which remained on hand at the time of the failure of Gear." So, in our opinion, at the time of the levy and sale by defendant here, the monuments were the property of plaintiff, and not liable to execution for Plymire's debts.

As suggested by appellant, there may be impolicy in allowing a severance of title and