but evidentiary to those ultimate facts involved in the issue, and however much such evidentiary facts may have been controverted at the trial the result did not crystalize them as a part of the issues in the case.

It is true the plaintiff here, according to the allegations of the complaint, had at the same time a cause of action against Susskind for the fraudulent purchase or procuring of the same and other like property from his assignor in insolvency.

He could not include his action for damages as to that in the replevin suit for two reasons: 1. Because under the doctrine enunciated in Lovensohn v. Ward, supra, he could not inject this new matter in to the action of replevin; 2. Because, under section 427 of the Code of Civil Procedure, a cause of action to recover specific personal property, with or without damages for withholding thereof, cannot be united with a cause of action for injury to property, and for the further reason that the separate cause of action against Susskind did not affect Sheriff Cline.

A party may not split up a single cause of action and maintain separate actions thereon, but every wrong furnishes a cause of action. All damages arising from a single wrong, though at different times, make but one cause of action. (Bendernagle v. Cocks, 19 Wend. 207; 32 Am. Dec. 448.) But wrongs perpetrated at different times by the same or by different persons furnish separate cause of action.

In this last sense plaintiff's cause of action against the defendant was distinct from that against him and Sheriff · Cline, enforced in the action in which he intervened.

As a matter of course his recovery in the intervention suit diminishes by so much his right to recover in this action, just as would have occurred had the defendant herein voluntarily delivered to him and had he accepted the same property.

When the sheriff seized a portion of the goods to which the plaintiff here was or claimed to be entitled, it gave to plaintiff a cause of action against such sheriff

CIX. CAL.-14

for the goods thus unlawfully taken, but did not entitle him to intervene in that action except to recover the goods thus taken. Had the sheriff taken possession of all the property claimed by the assignee under the alleged fraudulent transfer by Wagner to Susskind, and had the plaintiff here under such circumstances intervened and claimed a part only thereof, he would have been concluded by the judgment in intervention from recovering the residue in another action.

If A is the owner of two horses, which are wrongfully taken from him by B, who transfers one of them to C, it would hardly, we think, be contended that a recovery from C of the horse held by him would be a bar to a recovery of the other horse held by B. Yet in principle the case supposed would not differ from the one at bar. It is only where a claim is founded upon one entire contract, or upon one single or continuous tortious act, that it cannot be divided into distinct demands, and be made the subject of separate actions.

The taking of a portion of the property, claimed by the plaintiff as assignee, by the sheriff constituted a separate tortious act giving to plaintiff a right of action, which was waged by him as an intervenor in the action against the sheriff, and did not conclude him in this action against the original tort-feasor, Susskind, brought to recover as to the residue of the property.

In the first action the parties were not the same as in the present one, and Hall, the assignee, was not entitled therein, as an intervenor, to introduce the evidence necessary to sustain the present action.

This being so, it follows that the court below did not err in its rendition of judgment on the plea of the pendency of another action between the same parties for the same cause of action, and the judgment appealed from should be affirmed.

BRITT, C., and BELCHER, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is affirmed.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[No. 19430. Department Two.-September 26, 1895.] W. S. CHAFFEE ET AL., RESPONDENTS, v. A.

BROWNE ET AL., APPELLANTS.

A. W.

FORECLOSURE OF MORTGAGE-PLEADING-NONPAYMENT.-Where a complaint for the foreclosure of a mortgage shows with reasonable certainty that, at the time the mortgage was given, the debt recited was already due and unpaid, an objection to the complaint that it does not allege nonpayment of the sum demanded is not tenable. ID.-SUFFICIENCY OF DESCRIPTION IN MORTGAGE REFERENCE TO DECREE OF DISTRIBUTION.-A mortgage by a person entitled to share in the distribution of the estate of a deceased person upon all of her interest in the estate, reference being had to the proceedings, files, papers, documents, and records of the administration of the estate for a more full and complete description of the property rights and credits of the estate, and of the interest of the mortgagor therein, is sufficient to warrant a sale under foreclosure of the property which became the property of the mortgagor in severalty, although at the time of the execution of the mortgage the estate had been distributed and withdrawn from administration.

ID DESCRIPTION OF MORTGAGOR AS CHILD AND HEIR-INTEREST OF DEVISEE.-A mortgage upon the interest of a mortgagor in the estate of a deceased person of all her interest as child and heir at law of the decedent includes whatever property the mortgagor took in the estate as devisee under the will of the decedent.

DISCHARGE IN INSOLVENCY-SUBSEQUENT PROMISE.-The fact that a portion of the debt claimed consists of a demand from which the debtor had been discharged in insolvency is no defense to a recovery of the debt against him, where it clearly appears that after the discharge the debtor promised to pay the same. ID. RESCISSION OF RELEASE-FAILURE OF CONSIDERATION.-The release of a demand which has been rescinded by the parties for failure of consideration is no defense to a recovery of the demand. ID.-STATUTE OF LIMITATIONS-ACKNOWLEDGEMENT OF INDEBTEDNESS.Where the mortgagors signed with the mortagees an instrument releasing from the mortgage a part of the encumbered property, and referring therein to the indebtedness secured by the mortgage, such instrument constitutes an acknowledgmenet of the indebtedness by which the running of the statute of limitations upon the indebtedness is interrupted. ID. MORTGAGE UPON WIFE'S PROPERTY-WANT OF CONSIDERATION—— ANTECEDENT DEBT OF HUSBAND.-Where a mortgage was given by the wife upon her separate property to secure her husband's antecedent debt, without any new consideration received either by the husband or the wife, or moving from the creditor, the mortgage is not obligatory. ID.-HUSBAND AND WIFE-SUPPORT OF FAMILY-LIABILITY OF Wife— AGENCY.-The husband must maintain his wife and children, save under exceptional circumstances; and in the ordinary case where the wife, living with the husband, obtains on his credit supplies needed for the family, she acts as agent of the husband, and

incurs no personal liability, in the absence of a contract for her personal credit, and such contract will not be implied from the circumstance that she personally obtains the goods.

ID. CHARGE IN EQUITY UPON WIFE'S SEPARATE ESTATE-INSOLVENCY OF HUSBAND. There can be no charge in equity upon the wife's separate estate without clear proof that she contracted the debt on her own behalf, or intended to bind her separate estate for its payment, and the fact that the husband is insolvent or unable to sustain the whole charge of the family support does not affect the rule.

ID. RECITAL OF JOINT INDEBTEDNESS

ESTOPPEL-CONSIDERATION.— The recital in a mortgage upon the wife's property to secure the husband's antecedent debt that she and her husband are jointly and severally indebted to the mortgagees for goods received by them cannot estop the wife or forbid inquiry into the consideration of the mortgage.

APPEAL from a judgment of the Superior Court of Ventura County and from an order denying a new trial. B. T. WILLIAMS, Judge.

The facts are stated in the opinion.

H. L. Poplin, for Appellants.

The mortgage, having been made for the accommodation of the husband to secure his antecedent indebtedness, and there being no new consideration therefor, is without consideration. (Civ. Code, secs. 2792, 2831, 2844; Jones on Mortgages, secs. 458, 615; Comstock v. Breed, 12 Cal. 288; Leverone v. Hildreth, 80 Cal. 139.) Partial failure of consideration is a defense pro tanto. (2 Jones on Mortgages, sec. 1490; 6 Wait's Actions and Defenses, sec. 4, p. 577; 2 Parsons on Contracts, 462 et seq.; 2 Pomeroy's Equity Jurisprudence, sec. 925 et seq.; Braly v. Henry, 71 Cal. 481; 60 Am. Rep. 543; 6 Wait's Actions and Defenses, sec. 5, p. 580, and authorities there cited.) A parol promise to pay an indebtedness discharged in insolvency cannot bind the defendants. (Code Civ. Proc., sec. 360; Civ. Code, secs. 2911, 2922.) The release extinguished the debt. (Rhine v. Ellen, 36 Cal. 362.) The acknowledgment of the indebtedness cannot affect the mortgage of Mrs. Browne, or impose upon her any personal liability. (See Civ. Code, sec. 2828; Hickox v. Lowe, 10 Cal. 210; Van Orden v. Durham, 35 Cal. 136; Curtis v. Sacramento, 70 Cal. 414 et seq.;

McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170; Union W. Co. v. Murphy's Flat Fluming Co., 22 Cal. 627.) Nonpayment is a material allegation. (Ward v. Clay, 82 Cal. 511; Frisch v. Caler, 21 Cal. 71; Davanay v. Eggenhoff, 43 Cal. 395; Roberts v. Treadwell, 50 Cal. 520; Scroufe v. Clay, 71 Cal. 123; Richards v. Travelers' Ins. Co., 80 Cal. 506; Grant v. Sheerin, 84 Cal. 200; Curtiss v. Bachman, 84 Cal. 216; Barney v. Vigoreaux, 92 Cal. 631.) The acknowledgment of the indebtedness could not reinstate the lien of the mortgage. (Civ. Code, secs. 2911, 2922; Wells v. Harter, 56 Cal. 342; Henderson v. Grammar, 66 Cal. 332, 336.)

W. H. Wilde, for Respondents.

A married woman who mortgaged her separate property for the debt of the husband does so as principal, and is liable for the deficiency. (Alexander v. Boulton, 55 Cal. 15; Burkle v. Levy, 70 Cal. 250; Goad v. Moulton, 67 Cal. 536.) Husband and wife contract toward each other obligations of mutual support. (Civ. Code, secs. 155, 176.) The moral obligation of an antecedent debt, whether barred by insolvency or limitation, is a sufficient consideration for a new promise. (McCormick v. Brown, 36 Cal. 180; 95 Am. Dec. 170; Farrell v. Palmer, 36 Cal. 187; Chabot v. Tucker, 39 Cal. 434; Biddel v. Brizzolara, 56 Cal. 374.) Defendants are estopped by the recitals in the mortgage. (Code Civ. Proc., sec. 1962, subd. 2; Bigelow on Estoppel, 4th ed., 371, and note; Coles v. Soulsby, 21 Cal. 47; Hendrick v. Crowley, 31 Cal. 472; Rhine v. Ellen, 36 Cal. 362; Pierce v. Whiting, 63 Cal. 538; Graham v. Stewart, 68 Cal. 374; Waldrip v. Black, 74 Cal. 409; Carty v. Connolly, 91 Cal. 15.)

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 re