satisfy all his debts; therefore, in a suit by creditors to set aside a conveyance as fraudulent, an averment that there is no other property out of which to make the claim by execution is generally held to be necessary. It is enough, however, to allege that at the date of the conveyance the debtor did not have enough property left, subject to execution, to pay all his debts, and the complaint need not aver that he had no property subject to execution when the suit was begun.5 So it is held to be sufficient in a complaint in a suit by a judgment creditor to reach property alleged to have been conveyed in fraud of his rights, to state that an execution had been issued upon his judgment, and "duly returned unsatisfied," without alleging the debtor's insolvency, or that he had no other property cut of which the judgment could be made. If the complaint or petition shows on its face that the conveyance was made more than four years (the period of limitation) before the action was brought, it must contain an averment that the fraud was not discovered until within that period; otherwise, the defendant may demur on the ground that it does not state facts sufficient to constitute a cause of action.8 Under the practice in most of the States, the creditor must first have reduced his claim to a judgment, and this should be averred; but in Ohio, this is not required.10 In ejectment to recover a town lot, the defendant answered alleging that he voluntarily executed and delivered the deed, upon which the plaintiff relies, without consideration, for the sole purpose of hindering, delaying, and defrauding his creditors; that the plaintiff accepted the deed with full knowledge of the facts, and agreed, upon demand and without consideration, to reconvey the property to the defendant; that the defendant did not surrender the possession, and that the plaintiff has 12 ? never been in the possession thereof; and it was held that the averments in the answer, setting up the fraud, did not constitute any defense to the action, and that the plaintiff's demurrer to the answer was properly sustained."1 1 Doerfler v. Schmidt, 64 Cal. 265. 2 Morgan v. Bogne, 7 Neb. 429. And see Newman v. C'ordell, 43 Barb. 448; Evans v. Lewis, 30 Ohio St. 11. 3 Hogan v. Robinson, 94 Ind. 138; Pennington v. Flock, 93 Ind. 378; Emery v. Yount, 7 Colo. 107. 4 Price v. Sanders, 60 Ind. 310; Whitesel v. Hiney, 62 Ind. 168; Emery v. Yount, 7 Colo. 107: Moore v. Lampton, 80 Ind. 301; Noble 1. Hines, 72 Ind. 12. But this is not required in Ohio: Gormley r. Potter, 29 Ohio St. 597; Westerman v. Westerman, 25 Ohio St. 500. And see Rounds v. Green, 29 Minn. 139. 5 Jennings v. Howard, 80 Ind. 214. See McPherson v. Kingsbaker, 22 Kan. 646. 6 Page v. Grant, 9 Oreg. 116. See Loving v. Pairo, 10 Iowa, 232. 7 Combs v. Watson, 2 Cin. Gates v. Andrews, 37 N. Y. 657. Rep. 523; 32 Ohio St. 228. And see 8 Combs v. Watson, 2 Cin. Rep. 523; 32 Ohio St. 228. 9 Gorton v. Massey, 12 Minn. 145; McCartney v. Bostwick, 31 Barb. 390; Kent v. Curtis, 4 Mo. App. 121. Rounds v. Green, 29 Minn. 139; 10 Combs v. Watson, 2 Cin. Rep. 523; 32 Ohio St. 228. 11 Peterson v. Brown, 17 Nev. 172. A conveyance by a debtor of his homestead is not fraudulent as to creditors: Pike v. Miles, 23 Wis. 164; and in an action to set aside such conveyance, the fact that the property was the debtor's homestead may be shown under a general denial: Hibben v. Soyer, 33 Wis. 319. And the defense is available to the grantee without having been set up by the debtor himself: Hibben v. Soyer, 33 Wis. 319. In a suit to set aside a fraudulent conveyance, the defendants cannot set up as a defense fraud upon creditors who are strangers to the record: Steadman v. Hayes, 80 Mo. 319. 1 ? 150. Goods sold and delivered. In a complaint for goods sold and delivered, the ordinary form of a count in indebitatus assumpsit is sufficient under the Code system of pleading. Thus, a complaint for goods sold, which avers that the defendant is indebted to the plaintiff in a certain sum for goods sold and delivered to him at his request, and that the defendant has not paid for the same, states a good cause of action. The promise to pay, alleged in the common count in assumpsit, was BOONE PLEAD.-24. a mere conclusion of law from the facts stated, and need not be averred under Code pleading, which requires only the facts to be stated. But a complaint which alleges an indebtedness and sets forth an account, but does not allege the sale or delivery of the articles to the defendant, nor show in what place or in what manner the indebtedness accrued, whether on account of the defendant, or that of another, is insufficient. If the complaint in hæc verba sets forth the bill of sale, this will remedy a defect in the description of the quantity of the goods sold.5 It is not necessary to allege that the demand has not been paid, or that it remains due and unpaid at the time of commencing the action; payment is an affirmative defense, and should be alleged and proved by the defendant. An allegation that the defendant consented, agreed, and promised to buy is not sufficient as an allegation of a sale, or of an agreement for a sale.8 In an action to recover for goods sold and delivered, the defendant may deny each and every allegation in the complaint contained on information and belief. But a denial in form, "any information sufficient to form a belief as to the allegations of the complaint," is held to be insufficient, and in such case the allegations of the complaint must be taken as true, and averments in the answer that the goods were bought by the defendant of a stranger, who had been paid therefor, do not constitute a defense, although they might have if the denial had been in proper form, namely, "any knowledge or information sufficient," etc.10 If the complaint avers the sale and delivery to the defendant of goods and their value, an answer which denies the indebtedness but does not deny the facts, the sale and delivery, and amount of goods, does not raise an issue, as it only denies the legal conclusion resulting from the facts." 1 Allen v. Patterson, 7 N. Y. 476; Magee v. Cast, 49 Cal. 141; Curran 1. Curran, 40 Ind. 473; Meagher v. Morgan, 3 Kan. 372; Freeborn v. Glazer, 10 Cal. 337. 2 Abadie v. Carrillo, 32 Cal. 172; Kerstetter v. Raymond, 10 Ind. 199; Magee v. Kast, 49 Cal. 141. 3 Wilkins v. Stedger, 22 Cal. 232; Farron v. Sherwood, 17 N. Y. 230; Higgins v. Germaine, 1 Mont. 230; Levinson v. Swartz, 22 Cal. 229. 4 Mershon v. Randall, 4 Cal. 324. And see Buell v. Cory, 50 Cal. 639, 641; Keller v. Struck, 31 Minn. 446. A complaint for certain cattle sold and delivered is not sustained by evidence that such cattle were delivered to the defendant to be slaughtered and the meat sold on commission: Evans v. Bailey, Sup. Ct. Cal. 4 West C. Rep. 427. 6 Salisbury v. Stinson, 10 Hun, 242. And see Smith v. Holmes, 19 N. Y. 271. That it is better to allege non-payment: See Roberts v. Treadwell, 50 Cal. 520; Downey v. Whittenberger, 60 Ind. 188; Wilkins v. Moore, 20 Kan. 538. 7 Salisbury v. Stinson, 10 Hun, 242, 8 Buell v. Cory, 50 Cal. 639, 641. 9 Richards v. Fuechsel, 5 Civ. Proc. R. 430. And see Henderson 2. Manning, 5 Civ. Proc. R. 221. 10 Hautemann v. Gray, 5 Civ. Proc. R. 224, n. 11 Lightner v. Menzell, 35 Cal. 452. And see Drake v. Cockroft, 1 Abb. Pr. 203; 10 How. Pr. 377; Wells v. McPike, 21 Cal. 215; California etc. Tel. Co. v. Patterson, 1 Nev. 151. 151. Guaranty.-In an action upon a contract to guaranty the payment or collection of a debt contracted by another, it is not necessary to aver in the complaint that the promise was made in writing;1 it will be presumed to have been so made until the contrary appears by the answer or proof. And a parol guaranty of the payment or collection of a note or bill, transferred in payment for property purchased or debt due by the guarantor, is not within the statute of frauds. When notice of the acceptance of an offer to guaranty is requisite, the allegation of notice in the complaint in an action on such guaranty should be special, and such as will enable the court to determine from its statements whether or not the notice was given as the law requires; the general averment, "of all which the defendant had notice," is not sufficient.5 In an action on a contract of guaranty of prompt payment, the complaint must allege that the defendant has not paid the indebtedness for the recovery of which the action is brought, and an allegation that the whole thereof is now due is insufficient. In an action upon a conditional guaranty, the plaintiff must establish that the condition has happened which made the defendant liable. In an action against an indorser of a promissory note, an allegation in the complaint that the plaintiff used due diligence in the prosecution of a suit against the maker will not admit of evidence that such suit would have been unavailing because of the insolvency of the maker. 1 Wakefield v. Greenhood, 29 Cal. 597; Walsh v. Kattenburgh, 8 Minn. 127 Taylor v. Patterson, 5 Oreg. 121; Brannan v. Ford, 46 Cal. 7; First Nat. Bank v. Kinner, 1 Utah, 100. 2 Wentworth v. Wentworth, 2 Minn. 277; Walsh v. Kattenburgh, 8 Minn. 127. 3 Lossee v. Williams, 6 Lans. 228; Cardell v. McNeil, 21 N. Y. 3364 Steadman v. Guthrie, 4 Met. (Ky.) 147. See as to notice of acceptance: Taylor . Wetmore, 10 Ohio, 490; Powers v. Bumeratz, 12 Ohio St. 273; Cal. Civ. Code, ? 2795. 5 Steadman v. Guthrie, 4 Met. (Ky.) 147. 6 Roberts v. Treadwell, 50 Cal. 520. 7 Cereghino v. IIammer, 60 Cal. 235. 8 Woolsey v. Williams, 34 Iowa, 413. See Craig v. Parkis, 40 N. Y. 181. ? 152. Husband and wife. —Under the statutes regulating the rights of married women which have been enacted in the several States, a wife may sue and be sued in all matters relating to her separate estate in the same manner as a femme sole. And it is further provided in New York, that it is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. But generally the statute is permissive, and she may or may not sue alone at her election; and the husband may unite with his wife in a suit concerning her separate property, and no averment of his interest other than the marital relation is necessary in the complaint.* Since the fact of coverture has ceased to have any rela |