On Rehearing. On rehearing the cross-appellant relies upon the case of Huntsville Bank Trust Co. v. Thompson, 212 Ala. 511,103 So. 477. Some expressions in that case, standing alone, may be a bit misleading.
In that case the wife had joined in a note with the husband and defended on the ground that she was surety merely. Plaintiff, by replication admitting suretyship, sought to avoid the defense by setting up that such suretyship was entered into in consideration that a debt from the wife to the husband, or to his firm, should be canceled to the amount of the note on which she was surety. The case declared this fact could not be pleaded in avoidance of the inhibition of the statute, and added: "The only consideration which can have that effect is one inhering in the immediate transaction — the creation of the debt — by virtue of which she then becomes bound to pay it as her own primary obligation." The case does not hold that the wife could not become a party to a novation whereby, in consideration of the cancellation of her debt to one, she became bound, along with her husband, for like amount to another. The case holds that her liability arises as a primary obligation for a consideration passing at the time of the transaction. It becomes her debt in such case, and she is not a surety merely. Such matter was covered by the general issue in that case.
Viewed in the light of the question there presented, and with the qualification above quoted, that case can be reconciled with this and many other cases holding the wife bound, unless the sole consideration is surety-ship for the husband.
Application for rehearing overruled.