8 Ala. 399 | Ala. | 1845
It is now objected that the Court should have sustained the demurrers to the replication to the second plea, because more than one replication to a plea is not allowed. It is true that this Court, in Gray v. White, 5 Ala. Rep. 490,and again in Stiles v. Lacy, 7 Ala. Rep. 17, held that to be the law, but the objection to this vicious pleading, has not been taken in such a way, that in can be noticed by this Court. The proper mode would have been, to move the Court to strike out all the replications but one, and the plaintiff wou'14 have been put to his election which he would retain; or it might have been reached by a general demurrer to all the replications. A separate demurrer to each, did not raise this question in the Court below, and for that reason, it cannot be for the first time sprung upon the plaintiff in this "Court. We must therefore consider the sufficiency of the pleadings brought to view by the demurrers — the second count of the declaration, and the first and third replications to the second plea.
The law of this case, as expounded by this Court when the case was last here, is, that the defendant was liable upon her promise made after the coverture had ceased, if the promise made during coverture was supported by a moral obligation, and the subsequent promise made upon sufficient consideration.
The moral obligation would be established, by showing either, that the goods for which the note was given, were furnished on the faith of the separate estate which it appears the wife had, or that the note was executed by her as the surety of her husband. That, was the case of Lea v. Muggeridge, 5 Taunton, 37, where the question was elaborately considered, and we think that the fact, that the defendant had a separeestate, and whilst a feme co
To apply these principles to this case. The demurrer to the declaration was properly overruled, as it is perfectly good upon its face. The fact of coverture when the note was executed, does not appear in the declaration, but is disclosed by the plea, in answer to which the plaintiff undertakes by his replication to show, that notwithstanding such was the fact, he is still entitled to recover. The inquiry then is, is the replication sufficient, according to the principles above laid down. Neither of the replications are sufficient. It should have been averred, that the note was given under such a state of facts, as would show that the defendant was under a moral obligation to pay it; as for example, that the consideration of the note was goods, or money furnished upon the faith of her separate estate; or that she became the surety of her husband, and that after the death of her husband, she promised on sufficient consideration to pay it. The Court also erred in refusing the first charge moved for by the plaintiff in error. Let the judgment be reversed and the cause remanded.
