Beville v. . Cox

ClaRK, J.: When this case went back for a new trial it was competent to admit additional evidence, or further pleadings and issues. Ashby v. Page, 108 N. C., 6. A new trial is on the whole merits (unless it is restricted to certain issues), and the Court below can proceed as if no former trial had taken place. McMillan v. Baker, 92 N. C., 110; Jones v. Swep *268 son, 94 N. C., 700. Whether, however, the Court would permit the additional pleas asked by defendant, was in its discretion and not reviewable (Hinton v. Deans, 75 N. C., 18; Johnson v. Rowland, 80 N. C., 1), unless the Court put the refusal upon a want of power, which was not done. The inquiry by the Court ¿s to the action of the preceding Judge seems to have been to aid himself in the exercise of his discretion. At least we are not to presume error when it is not affirmatively stated that the refusal was on the ground of a want of power. Besides, the additional issues asked and refused did not arise upon the pleadings or the Magistrate’s return. We know of'no practice which would require the Judge to recognize the additional returns, voluntarily sent up since the former trial by the Justice of the Peace. Why the Justice did not amend his return earlier, or why a recor-dari was not issued to have the additional matter sent up, does not appear. Doubtless the Judge, if the parties consented, or without their consent, might permit the supplementary returns to be filed, but he did not do so. If a recor-dari had been applied for, the adverse party would have had notice and been put on inquiry, of which benefit he was deprived by the volunteered action of the Justice. It is clear that, both under the old practice and the new, advantage cannot be taken of the coverture of the plaintiff under the plea of the general issue. That plea controverts the allegations of the plaintiff. It does not admit of proof of matter in avoidance, such as the coverture of plaintiff. Gould on Pleadings, 531. A married woman may sue alone on a contract to pay her for her services rendered, subject to the non-joinder of the husband being pleaded in abatement. Moran v. Cubitt, 3 Exch., 611; Bendix v. Wakeman, 12 M. & W., 97; Dalton v. Midland R. R. Co., 22 L. R. (N. S.), 177. If a married woman sues alone, and the disability does not appear upon the face of the complaint, the defendant can only avail himself of the coverture by specially pleading it. *269 The objection is waived by a general denial. Dillaye v. Parks, 31 Barb., 132. The plea of the general issue is a waiver of all objections to the person of the plaintiff and admits his capacity to sue. Brown v. Ullius, 27 Conn., 84; Bank v. Curtis, 14 Conn., 437. In our own State it is held that if the subject-matter is within the jurisdiction, “any peculiar circumstance excluding the plaintiff or exempting the defendant must be brought forward by a plea to the jurisdiction. Otherwise, there is an implied waiver of the objection, and the Court goes on in the exercise of its ordinary jurisdiction.” Blackwell v. Dibbrell, 103 N C., 270, citing Pearson, J.; in Houston v. Branch, 44 N. C., 85. The Court, therefore, properly excluded evidence which would only have been competent to support a plea in abatement, not pleaded. If the contract had been a continuing one, the plaintiff could have recovered before the Justice of the Peace for the entire services (not exceeding $200), as was pointed out in this case, 107 N. C., 175, as well for those rendered after marriage of defendant's intestate as before. But if, in her complaint before the Justice, the plaintiff joined in the account charges for services rendered after the marriage of such intestate, as well as those before, and on appeal only recovered for those rendered before the marriage, we do not see bow the defendant can complain. Deloatch v. Coman, 90 N. C., 186; Ashe v. Gray, 88 N. C., 190. In any aspect of the case the coverture of the defendant’s intestate could not defeat the recovery before a Justice for at least the services rendered before her marriage. The Code, § 1823; Hodges v. Hill, 105 N. C., 130; Neville v. Pope, 95 N. C., 346. No error.