Sharp v. Burns & Coles, 35 Ala. 653

A. J. WALKER, O. J.

The second and third counts of the complaint are not defective in the particulars mentioned in the first, second, third, fourth, fifth, sixth, and eighth assignments of demurrer. The objection made in the seventh assignment of demurrer is not valid. It was not necessary, at common law, in a suit upon an account, *662to specify the several articles of goods, wares and merchandise charged; nor is there any reason why it should be required in a proceeding under section 1987 of the Code. — 2 Chitty on Pleading, 55-56. There was no error in overruling the demurrer to the second and third counts of the complaint.

[2.] The evidence that the defendants did most of their trading with the plaintiffs, was admissible. The fact that the defendants chiefly procured their supplies from the plaintiffs, perhaps contributed something to the argument, that the comfort and support of the household was not otherwise provided for, and that those articles sold by the plaintiffs were really for the comfort and support of the household, and such as the husband would be responsible for at common law.

[3.] The first proposition of the charge given by the court is, that a woman, who married after the Code went into operation in 1853, and who was then entitled to a distributive share in the estate of one who died in 1842, had a separate estate in property received after her marriage as her distributive share in such estate. This proposition is unquestionably correct; for section 1982 of the Code expressly enacts, that property of the wife, held by her previous to the marriage, is her separate estate; and the interest of a distributee of an estate is property. Hardy v. Boaz, 29 Ala. 168. Where the marriage occurred after the enactment of the law providing separate estates for married women, property which she held at the time of the marriage, no matter when acquired, is her separate estate. It was remarked in Hardy v. Boaz, (supra,) that the acts of 1848 and 1850, concerning separate estates, had “ no retroactive effect upon estates which had accrued to, and vested in the wife, but operate only as to the property or interests which accrued to, and were acquired by the wife after their passage.” This remark has relation only to cases where the marriage occurred before the adoption of the statutes, and was simply designed to assert that they did not retroact upon property which accrued under pre-existing marriages. Allowing those statutes to operate upon property held by a woman before their *663adoption, does not give them a retroactive operation, if the marriage occurred after their adoption. — Kidd v. Montague, 19 Ala. 619; Manning v. Manning, 24 Ala. 386.

[4.] The latter part of the charge, assuming the marriage of the defendants, sums up as the requisites to make the feme covert’s separate estate liable to the payment of the accounts, the following — that the accounts were contracted by the husband or wife, in 1854, 1855, and 1856; that they were for articles of comfort and support of the household, suitable to the degree and condition of the family, for which the husband would be responsible at common law, and that the wife owned the separate estate at the time the articles were purchased. The marriage of the defendants was evidently an established and undisputed fact in the case ; and the court was, therefore, authorized to assume its existence in giving instructions to the jury. — Kirkland v. Oates, 25 Ala. 465; Nelms v. Williams; 18 Ala. 650; McDougald v. Rutherford, 30 Ala. 253. This summary of the facts necessary to render a wife’s statutory separate estate liable, is in strict conformity to the law, as expounded in the decisions of this court. — Durden and Wife v. McWilliams, 31 Ala. 438; Ravisies v. Stoddart, 32 ib. 599. If the charge had predicated the plaintiffs’ right of recovery upon the facts stated, it would have been incorrect, because it does not include among those facts that of the ownership of the property at the commencement of the suit. It simply deduces the liability of the separate estate from those facts, but does not assert that, upon_those facts, this particular action could be maintained. The charge covers the question of the liability of the separate estate to be subjected by action to the payment of the accounts — not the question of its liability to an action brought at the time when this suit was commenced. If the charge was ambiguous, or tended to mislead the jury, without asserting an erroneous proposition of law, the defendants should have protected themselves, by asking an explanation. — Taylor v. Kelly, 31 Ala. 59; Skinner v. State, 30 Ala. 524.

[5.] The defendants were not entitled to have any one of *664the six charges asked by them given. The right to subject the wife’s separate estate-to payment for the articles described in section 1987 of the Code, is not affected by the solvency and ability of the husband to pay, nor ly the fact that the husband has been recognized as a debtor, or has given a mortgage to secure the payment. Whenever the combination of circumstances described in section 1987 exists, the wife’s separate estate is liable. The husband is undoubtedly also liable personaliter; and the fact that securities have been taken to make his liability effectual, could no more relieve the wife’s separate estate from the charge upon it, than would the taking of similar steps in other cases where a creditor has distinct remedies. That an account exceeded the income of the separate estate, is not, per se, a legal reason for an exemption of the separate estate from the charge. The 5th charge requested is at variance with the doctrine, which we have • announced in reviewing the first proposition of the charge given.

[5.] We can perceive no reason for requiring, as the sixth charge pi’oposes, a specification in the verdict of the items of-the account.

[7.] The judgment entry seems to be in substantial conformity to that prescribed in Ravisies v. Stoddart, supra. If there be any defect in it, it is not pointed out in the argument of counsel, and has escaped our attention.

[8.] It is a practice uniformly pursued in this court, to refuse a reversal for anything in the conduct of the court below which could not have exerted any influence prejudicial to the appellant upon the trial. The account which the court compelled the appellants’ counsel to deliver to the opposite counsel, that he might introduce it in evidence, was certainly admissible and competent testimony, in. the connection in which it was offered. The effect of the conduct of the court was simply to procure the reading of legal evidence. If the court transcended its powers, (which we do not moan to assert,) no prejudice to the appellants, so far as the cause is concerned, has resulted. As well might it be said, that there is a reversible error, when some means of fraud or deception have been used *665to procure the attendance of a witness whose testimony is legal. Upon an appeal from a judgment in a cause, there can be no inquiry into the agencies resorted to for the procurement of the possession of documentary evidence, which is admissible.

The judgment of the court below is affirmed.

Stone, J., dissents from the opinion of the majority on the charge given.

Case Details

Case Name: Sharp v. Burns & Coles

Court Name: Supreme Court of Alabama

Date Published: Jan 15, 1860

Citation: 35 Ala. 653

Court Abbreviation: Ala.