96 Ga. 803 | Ga. | 1895
1. That an action is prematurely brought, is a defense which is not available under the plea o£ the general issue. Such an issue must be presented either by plea in abatement to the writ, or by motion for nonsuit; but if the fact appear on the face of the record, it may be made by demurrer.
2. The pleas alleging usury, and which were stricken, on motion, by the court, containing no averments of fact which take the present out of that class of cases in which, according to the rulings of this court, contracts purely mutual between the members of building and loan associations, where each member takes an interest in the several contributions to a general fund, are held to be not usurious, were therefore properly stricken.
3. As a general rule, coverture, according to the principles declared by this court in the cases of Hays v. Jordan, 85 Ga. 741, and Schofield v. Jones, Ibid. 816, no longer operates as a limitation upon the power of a married woman in this State to make contracts, whether she be possessed at the time of a separate estate or otherwise; and she may make any contract into which she is not prohibited to enter by positive law.
4. Where to an action upon a bond given to secure the payment of a sum certain and other items to be thereafter incurred, but which could not be stated at the time the bond was given, which bond contains a stipulation for the payment of attorney’s fees, the defendant files a plea of the general issue, and upon the trial the jury find for him as to some of the items charged, his plea is, in contemplation of law, sustained, and the plaintiff, under the act of July 22d, 1891 (Acts of 1890-91, vol. 1, p. 221), is not entitled to judgment for attorney’s fees. Direction is accordingly given, that the attorney’s fees allowed by the verdict be written off, and the judgment stand otherwise affirmed, with costs against the defendant in error. Judgment affirmed, with direction.