Milligan v. Pollard , 112 Ala. 465 ( 1895 )

McCLELLAN, J.

Plaintiffs were not prejudiced by the striking out of the first count of their complaint. Their case, was fully pesented by the second count, and under that they had every right and were subjected only to the same burdens they would have had and been subjected to under both counts.

The 3d plea of the defendant, “That his intestate was insane at the time he gave the note sued on, ’ ’ was essentially a plea of non est factum, and as such was bad for the want of verification.— Winston v. Moffet, 9 Port. 518. But this objection was not made to it. The objections which were made by demurrer were untenable. With us an insane man cannot bind himself by a contract, though his estate may be bound for the consideration upon the common counts, unless, possibly, according to some authorities, the contract is commercial paper in the hands of a bona fide holder for value without notice. The suit here is not on the common counts, but on the paper, which is not commercial. — Davis v. Tarver, 65 Ala. 98.

The 5th plea, “That said note was given by defendant’s intestate wholly without consideration,” is a good plea. — Giles v. Williams, 3 Ala. 316; Kolsky v. Enslen, 103 Ala. 97.

The replications filed by plaintiffs to the third plea were bad, but the demurrers thereto are general demurrers, and one of the assignments, that the replication is frivolous, presents an objection not proper to be presented except by motion to strike. The statute forbids the allowance of general demurrers, declaring: “No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies ; and no objection can be taken or allowed which is not distinctly stated in the demurrer.” — Code of 1886, § 2690 ; Donegan & Tabor v. Wood, 49 Ala. 242. The trial court should have overruled these general assignments of demurrer, and put defendant to specific assignments, or, failing that, to issue on the replications. — See Browder v. Irby, ante, p. 379.

Reversed and remanded.