Appeal from the Third District.

Mary Love, defendant, being unmarried, under the name of Mary Bennett, on the first of January, 1854, made and delivered to Messrs. Wallace & Ryland, of San José, a memorandum in writing in the following words:

“ [$500.00.]

“I promise to pay to Messrs. Wallace & Ryland, or order, the sum of five hundred dollars as soon as a judgment, either in favor of the plaintiff or defendant, shall be rendered in the case of Bennett v. Bird, now pending in the county of Santa Cruz.

“Mart Bennett.

“Witness: Winston Bennett.”

In May, 1854, she married Harry Love. On the fifteenth of August, 1854, Wallace & Ryland filed a complaint, based upon the foregoing memorandum, against Mary Love, styling her, in the complaint, Mary Bennett. The action was a simple action in debt; her husband was not a party to the suit. Judgment by default was taken against her for the amount sued for. The case was appealed to the Supreme Court, where the judgment was affirmed.

Harry Love, the husband, Bostic, plaintiff in this suit, and one Peleg Rust, executed the appeal bond.

Wallace & Ryland then instituted suit on the appeal bond, against the parties thereto, and recovered judgment. Bostic and Harry Love then delivered to Wallace & Ryland their promissory note for the amount of the judgment, which was accepted as a satisfaction thereof. Subsequently, Bostic made to them his sole note for the amount of the note of Harry Love and himself, which they accepted. At the time this suit was brought by plaintiff he had paid no money on account of the appeal bond, but this note was still held by Wallace & Ryland, and was secured to W. & R. by the assignment to them by Bostic of “ certain land bonds.”

Upon this state of facts, Bostic filed his bill, in which he sought to subject the separate estate of Mrs. Love to the payment of the debt which he had assumed to Wallace & .Ryland. No property is set out or described as her separate property, the only allegation being the general allegation that “ Mary Love possessed a large amount of property, both personal and real, and which she holds as her separate estate.” There is no allegation in the complaint, that her separate estate is liable for the debt, or that this debt is a charge upon it.

The answer of Mary Love is under oath, and denies “ that she was on the first day of January, A. D. 1854, or at any other time indebted to the said William T. Wallace and Caius T. Ryland in the sum of five hundred dollars, or in any other sum.” She further denies, “ that she at any time directed or requested any appeal to be taken from the said alleged judgment, or that she ever requested the plaintiff, Bostic, to execute for or on her behalf any appeal bond in the form set out and described in the plaintiff’s complaint, or in any other form.”

To controvert the denial under oath, that appellant was indebted to Wallace & Ryland, plaintiff offered in evidence the judgment roll in W. & R. v. Bennett. Plaintiff had judgment. Mrs. Love appeals.