Porterfield v. Butler

Citations

• 47 Miss. 165

Syllabus

<p>1. Pleading — practice—departure.—A departure in pleading is where a second pleading quits the ground of the first, and has recourse to another, which is fatal on demurrer. The test in all cases is that all subsequent pleading must “support and fortify55 the first.</p> <p>2. Same — novel assignment. — A novel assignment is a re-statement in amore minute and circumstantial manner of the cause of action alleged in the declaration.</p> <p>3. Case at bar. — B. sued P., a married woman, who pleaded her coverture; B. replied, averring: 1st. That the money sued for was to pay for property bought by P. and held and owned by her as her separate property; and that she was, at the time of the purchase, the owner of a large amount of separate property in her own right; and, 2nd. That since the doath of her husband, and while sole and unmarried, defendant admitfeed that her obligation sued on was in consideration of property so purchased by her as her separate estate; that the same was just, due and unpaid; and that she then and there again undertook and promised to pay the same, &c.: Held, that the replication thus setting up a new promise in such case, was a departure^ and that a demurrer to it was properly sustained.</p> <p>4. Practice — general rule. — Judgments without issue joined are nullities.</p> <p>5. Same — practice.—Formal recitals in the entry made in the minutes thatei thereupon came a jury who,” etc., avail nothing against positive facts of the record; and where any pleading remains unmet by issue, the judgment will be reversed.</p> <p>6. Married women — The purchase of a steamboat on a credit, by a married woman owning separate estate, is a nullity.</p> <p>7. Same — new promise after dis-coverture. — The promise of a woman, when sole and unmarried, to pay for a steamboat bought on credit by her while married, does not revive or create any obligation on her part.</p>