The allegation of nonpayment meant more than nonpayment in money merely; it meant nonpayment in any species of property. (Brown v. Orr , 29 Cal. 120; Wetmore v. San Francisco , 44 id. 301; Davanay v. Eggenhoff , 43 id. 397; Frisch v. Caler , 21 id. 71; Bliss on C.P., §§ 357, 358; Boyd v. Weeks , 2 Denio, 322; Wheeler v. Billings , 38 N.Y. 263; Greenfield v. Mass. Life Ins. Co. , 47 id. 430; Farmers' and Citizens' B'k v. Sherman, 6 Bosw. 181; S. C., 33 id. 69; Wait's Actions and Defenses, vol. 7, p. 423, citing Hamilton v. Moore, 4 Watts. & Serg. 570.)          If the Court did not err in excluding the testimony, it was an abuse of discretion to deny appellant's motion to amend.

Under this denial it would have been competent for the defendant to prove payment. (Freisch v. Caler, 21 Cal. 14; Brown v. Orr, 29 Cal. 120; Davanay v. Eggenhoff, 43 Cal. 395.) For the same reason it was competent to show that the plaintiff had transferred the demand, and that the defendant therefore was not indebted to him.

The statute then in force required a replication to new matter in the answer. The answer averred that the note in suit had been paid by the defendant, except a small sum, which was admitted to be then due; and it was contended that that averment was admitted, because of the failure on the part of the plaintiffs to file a replication denying it; but the Court held that it was not new matter; that the failure to pay the note constituted the breach, and must be alleged; and that the allegation in the answer--that it had been paid--was only a traverse of the allegation in the complaint that it had not been paid. (See, also, Brown v. Orr, 29 Cal. 120.) The opinion of Mr. Justice Cope, in the case of Frisch v. Caler, is distinguished for its force and clearness; and the doctrine then laid down has not since been departed from, so far as we are aware, except in the case of Hook v. White, 36 Cal. 300.

It is the instrument and contract of the husband alone, and has no binding effect on the wife. (25 Cal. 367; 29 Cal. 120; 31 Cal. 478.) If a nullity as to her and of no binding force upon her, its recitals cannot be invoked against her; she is not estopped by them.          It follows then, as a matter of law, that Mrs. Love is only a surety for the debt of her husband, and as such has a right to stand on the precise stipulation of the contract she assures; they cannot be enlarged by implication.

It is evident there can be no personal judgment against the wife. (Maclay v. Love and Wife, 25 Cal. 367; Smith v. Greer, 31 Cal. 476; Brown v. Orr, 29 Cal. 120.)          The complaint does not aver that the purchase money paid by the wife, exclusive of the $ 520 loaned by the plaintiff, was of her separate estate; and, in the absence of such an averment, the presumption is it was common property.

A case from our Supreme Court during the Johnson administration - the Andrew Johnson administration - nicely illustrates the difference between a widow's personal liability on a mortgage and a lender's ability to recover against the mortgaged property. In Brown v. Orr (1865) 29 Cal. 120, a wife executed, along with her then-living husband, a note and mortgage. After the husband's death, the lender sought to foreclose the mortgage and also have a "personal judgment" against the wife.

"The allegation that the `defendant' has not paid said notes, et cetera, is not an allegation as to both defendants; non constat but that one of them did pay them." From the statement of the facts in the case of Brown v. Orr, 29 Cal. 120, it appears that a man and his wife executed a promissory note; that thereafter the man died without the note having been previously paid by either him or his wife; that the owner of the note brought an action thereon against the wife and her two infant children. Regarding the nonpayment of the note, the allegation of the complaint was "that although long since due and payable, the defendants have hitherto failed and refused to pay the same or any part thereof, though often requested".