Rodgers' Adm'r v. Brazeale

E. W. "WALKER, J. 1. The judgment entry informs us, that tbe “plaintiff amended bis complaint by filing an additional count.” Tbe complaint, as amended, consisted therefore of tbe‘original’ aud-tbe ‘additional’ counts; and tbe demurrer being to tbe amended complaint, was properly overruled, if either count was good, or was free from tbe specific objections pointed out by tbe demurrer. [515] Ferguson v. Baber, 24 Ala. 402. Neither of the causes specified in the demurrer applies to the original count, and there was, therefore, no error in .overruling it. — Code, § 2253; Morton v. Bradley, 27 Ala. 640 ; McElhaney v. Gilleland, 30 Ala. 183. 2. If it be conceded that the second ‘ plea ’ is to be construed as averring that the defendant’s intestate was a married woman at the time the contract was made, still, as this defense was admissible in evidence under the general issue, which was also pleaded, the sustaining of the demurrer was error without injury. — Rakes’ Adm’r v. Pope, 7 Ala. 161; McKenzie v. Jackson, 4 Ala. 230; Stein v. Ashby, 24 Ala. 521; 1 Chitty’s Pl. 511-13. We think that, under the act of 1853-4, (Pamphlet Acts ’53-4, p. 60,) the plea of ‘ non assumpsit,’ where the action is in the nature of a common-law action of assumpsit, has the same scope and effect as the same plea according to common-law rules, and the same defenses are admissible under it. 3. The third plea professes to answer the entire complaint. It was obviously defective as an answer to the first count; and not constituting a defense to the extent to which it professed to go, and being, besides, objectionable because it stated a legal conclusion instead of facts, and also because it assumes that the wife’s separate estate would not be liable, unless she herself made the contract, the demurrer to it was properly sustained. — Shepherd’s Digest, 721, §§ 199, 200, and cases cited. 4. The bill of exceptions shows affirmatively, that the accounts proved by the plaintiff “ were contracted by the husband of the defendant’s intestate during the cover-ture, and consisted of articles of comfort and support of the household, suitable to the degree and condition in life of the family, and for .which the husband would be responsible at common law.” Upon these undisputed facts, the wife would not be suable at law, except by virtue of sections 1987-8 of the Code. These sections provide the only modes in which the separate estate of the wife may be subjected by action at law. The forms of redress designated for this purpose are — first, an action against the [516] husband and wife jointly; second, an action against the husband alone, to be followed upon the return of the execution against him ‘no property found,’ by a motion against the wife for an oi;der to sell her separate estate to satisfy the judgment. It is obvious that no authority is given for a suit in the first instance against the represen tative of the deceased wife. The charge asked should have been given by the court, as, upon the facts stated, the plaintiff could not maintain the action. The judgment is reversed, and the cause remanded.