Howland v. Wallace

81 Ala. 238

• Court: Supreme Court of Alabama
• Decided: December 15, 1886
• Status: Published

Opinion

STONE, C. J.

— The complaint in this case is an exact copy of the form given in the Code for a suit against a common carrier, for non-delivery of goods, and is sufficient. The demurrer to it was properly overruled. — Form 13, Code of 1876, 703. • A

The case was tried on the single defense of the general issue. That plea put in issue the material allegations of the complaint, and it did no more. Any defense, special in its nature, or reaching beyond such mere denial, the statute requires to be specially pleaded. — Code of 1876, § 2988; Petty v. Dill, 53 Ala. 641; Trammell v. Hudmon, 56 Ala. 235 ; Burns v. Campb ll, 71 Ala. 271, 294.

Infancy of plaintiff is not a defense in bar of the action. It must be pleaded in abatement. — 1 Chit. PI. 464, and note; 2 ib. 14 and note, and 406. And under our liberal system of amendments, if this defense had been properly interposed, an amendment by introducing a next friend would have been allowable.

Affirmed.