Jordan v. Gray

COLEMAN, J. Two declarations appear to have been copied in tlic record filed in this case. The clerk certifies that the last declaration was filed after the judgment- on the demurrer in fa [619] vor of the defendant, and after the adjournment of the court, consequently this court can only notice the first as properly a part of the record. The declaration commences in these words, “ Sealy Jordan, wife of Elijah Jordan, who sues by her next friend, Charles Jordan, plaintiff,” &c., and then proceeds with the usual count in detinue for a negro man slave, and does not aver any legal title to, or separate property in the slave, to be in the wife. It is agreed-by all the elementary writers on the subject, that a feme covert cannot in any case sue alone, unless her husband be civiliter mortuus, &c. But if she improperly sue alone, having no legal right of action, she will be non-suited.—1 Chitty, 23; 9 Ala. 855. We think it only becomes necessary to plead the coverture in abatement, when it does not appear in the pleadings in the case, but when the fact is fully disclosed by the declaration, as in this case, the objection is good on demurrer. Again, if a non-suit will be ordered, when it is disclosed by the testimony that a plaintiff is a feme covert and has no legal right of action, then we think a demurrer should be sustained to a declaration disclosing the same facts. There is no law authorizing a married woman to sue by her next friend at common law, and we think the declaration defective in that particular. Let the judgment below be affirmed.