Arthur v. Broadnax , 3 Ala. 557 ( 1842 )

ORMOND, J.

In the case of Wheeler v. Bullard, 6th Porter, 352, we held, that by pleading to the action, the defendant admitted that a declaration was filed. This has been repeatedly held since that decision was' made, and disposes of the first and second assignments of errors as it appears from the record, that the defendant appeared and pleaded to the action.

The answer to the plea of coverture made by the plaintiff, is that her husband had abjured, the State before the note was given. The Court in its charge to the jury, inform them, that if they find such to be the fact, and that the husband still remains abroad; that the plaintiff has always since, traded as a feme sole, and that the note sued on was given to her as such, they must find for the plaintiff.

This was a correct exposition of the law. See 1 Bacon, Ab. 504. In De Guillon v. L’Aigle, 2 Bos. & Pul. 357, it was held, that where the husband resided abroad, and the wife traded and obtained credit, as a feme sole, she was liable for. her own debts. The same decision was made in the case of Gregory v. Paul’s ex’r. 15 Mass. 31. See also, Marsh v. Hutchinson, 1 Bos. & P. 226.

No question is raised upon the record, as to what facts are necessary to constitute abjuration from the State, and we must therefore presume that it was proved to the satisfaction of the Court and jury.

The Court also charged the jury, that the fact of marriage could not be proved but by the production of the record, and would not be established by proof of the parties having lived together as man and wife. This is certainly not the law.. The general, perhaps the universal rule is, that the fact of marriage may be proved by general reputation and cohabitation, except in an action for criminal conversation, or on a trial for bigamy, and even in these cases, the fáct'might be proved by a witness who was present at the marriage.

But this portion of the charge, though erroneous, was wholly abstract, and could not, by possibility, prejudice the plaintiffs in error. The fact of the marriage was distinctly admitted by the pleadings, and not only was it unnecessary for the plaintiffs in error to prove the marriage, but the defendant in error was preeluded by her admission in the' replication to the plea from disproving it. As, therefore, this charge, though . wrong, could neither injure the plaintiffs in error, nor benefit the defendant; it will, according to the established rule pf this Court be disregarded.

Let the judgment of the Court below be affirmed. '