The declaration in this case contains two . , < counts, to each of which a demurrer was interposed.
The first count avers a suit by Bobe, the plaintiff in this suit, against one Acre; that pending the suit Acre died, and his widow,, who had been appointed his administratrix, was made a party defendant to said action; that Bobe recovered judgment against her, on the 23d April 1340, for $1,031 TW, besides costs of suit, to be levied of the goods and chattels of the said Acre in. her hands as administratrix unadministered; and that execution, duly issued on said judgment and had been returned “ no pro*92perty found.” It is further avered, that property of the said Acre came to the hands of said administratrix, to the value of $32,000, which she has wasted and applied to her own use; that she afterwards married James Frowner, her co-defendant in this action; and that the said judgment remains wholly unpaid.
The second count alleges that the present plaintiff, as administrator, &c. recovered a judgment, &c. in said court against the defendant, Mary Ann, who was then the administratrix of Samuel Acre, deceased, for the sum of $1081 T\\, besides costs, which judgment remains of full force and unsatisfied.
The demurrers to these counts being overruled, the defendants pleaded five several pleas. The fifth plea, to which a demurrer was overruled, was in these words: “And for a further plea in this behalf, the said defendants say, that the said plaintiff ought not to have and maintain his aforesaid action thereof against them, because they say, that before the rendition of the said judgment in the said plaintiff’s declaration mentioned, to-wit, on the 4th day of June 1889, in the county aforesaid, the said defendant, Mary Ann, intermarried with the said defendant, James Frowner, and that the said defendant, Mary Ann, was, at the time of the rendition of said judgment, a married woman, and this the said defendants are ready to verify; wherefore, they , pray judgment, &c.
This being adjudged on demurrer to constitute a good bar to the action, the plaintiff refused to reply to it, and thereupon judgment was rendered by the court for Frowner and wife. Before, however, proceeding to consider the questions raised, as to'the sufficiency of the plea and declaration, it may be proper to notice some preliminary objections made to the time of filing the plea, as well as the right to file it under the previous order of the court granting a new trial. The verdict of the previous term had been set aside, and a new trial granted upon condition of payment of cost and “joining issue” by the next term. The counsel for the plaintiff in error insists that by joining issue was meant, that the defendants should take issue upon the facts avered in the declaration, and that they were not authorised to file a special plea alleging new matter. In our opinion, the order should "not be understood in so restricted a sense. The verdict having been set aside without designating the character of the pleading, upon which issue was to be joined, *93it was competent for the court, at any subsequent term, to allow the defendants to plead any plea which might be deemed necessary to reach the merits of the controversy. We do not think the order was designed to limit the defendants to the general issue, but was an exercise of the discretionary power of the court to speed the cause, and have it ripe for a hearing at the next term, requiring, however, no waiver on the part of the defendants of any plea which they might otherwise have pleaded. It was within the discretion of the court to allow the plea to be filed, and this discretion is not revisable on error. — Planters’ & Mer. Bank v. Willis, 5 Ala. 770. Besides, the demurrer to the plea admits it to be filed, and upon such demurrer the plaintiff can only contest its legal sufficiency. — Powers v. Bryant’s Adm’r, 7 Port. R. 9.
We then come to the examination of the novel question presented by the plea, which, so far as we are advised, is for the first time presented in this court. The proposition may be thus stated — Is a judgment rendered against an administratrix, who marries pending the action, but whose husband is not made a party to the suit, and upon which judgment a return of “ no property” has been made on an execution, de bonis intestatis, binding upon the husband and wife, and can a recovery be had thereon against them, upon a declaration on the judgment, suggesting a devastavit? It is a general rule, that when a feme sole is sued for a debt contracted dum sola, and she marries pending the action, such marriage cannot be pleaded, either in bar or in abatement of the suit. The plaintiff, if he elects to do so, may proceed in the action, without regarding the marriage, and take judgment against the wife. He may also have his execution, but, as her estate is transfered by the marriage, her personal property absolutely, and her real estate pending their joint lives, nothing ordinarily can be taken in execution, so that the process becomes nugatory. But, it is said, the wife in such case, by the English law, may be taken with a ca. sa., and the debt secured perhaps in this way. — 1 Chitty’s Pl. 449, and cases cited; 1 Bacon’s Ab. by Bouv. 19; Roosevelt v. Dale, 2 Cow. R.581. In the case last cited, the administratrix married pending the suit, and it progressed against her without noticing the marriage, but the husband was regarded as the party to be really affected, and was allowed to interpose and make affidavits as the sub*94stantial party. We may then consider it as a clear proposition, that judgment may be rendered against an administratrix, notwithstanding she marries pending the suit. — 1 Chitty’s Pl. 57. Having progressed thus far, let us inquire whether this judgment, as against the assets of the estate, could have been made available.
It is certainly true, that upon the marriage, the husband, for his own safety, becomes the administrator in right of his wife, and he can take possession of the assets, and dispose of them even against her consent, and she becomes incapable of controling him in the exercise of the powers of an administrator during their joint lives. — Pistole v. Street, 5 Port. 64. But although, as we have said, the marriage is a transfer to the husband of all the personal property in possession of the wife at the time of the marriage, or which might thereafter come to her possession in her own right, yet it makes no gift to .him of the goods and chattels which belonged to her in auter droit, as executrix or administratrix; because, says Sergeant Williams, “such a gift might prove disadvantageous to the creditors, &c. of the testator or intestate; besides, since the wife takes no beneficial interest in the property, there is none which the law can transfer to him.” — 1 Wms. Ex’rs, 599. He has the power of disposing of the assets, but if he die before doing so, the estate of the wife, never having been divested, survives to the wife; neither do the outstanding assets survive to the husband in the event of her death, but go either to the executor of the wife, if she make a will of the assets to which she was entitled as executrix, or to the administrator de bonis non of the original testator or intestate. — 1 Wms. Ex’rs, 598; Ib. 40. As then the judgment against the wife is valid, notwithstanding the intervening coverture, and her title to the assets is not divested by the coverture, it follows that they may be levied on and sold under the execution against her. In Harris v. Corliss, 4 Mass. R. 659, it was held, that where a feme sole plaintiff married pending the suit, and the defendant pleaded the marriage in abatement, it was proper to give judgment against her for the cost. It was objected in that case, that the judgment for costs against the wife would affect the interest of the husband, who was no party to the suit, but it was replied by the court, that such execution could not be levied upon the goods of the husband, nor could *95his body be taken, but she might be arrested and imprisoned, if he failed to pay the debt. It was further said, <! if, instead of an execution on the judgment, the party recovering costs shall sue out scire facias, or bring debt against the husband and wife, he must have judgment, for the husband cannot inquire into the merits of the former judgment. So, on the other hand, if the judgment against the wife be erroneous, the husband may bring error, suing it in his own and in his wife’s name, to reverse it.” In this case the declaration avers the judgment against the wife as administratrix, the issuance of an execution against the goods of the intestate, and a return thereon by the proper officer that no such goods were to be found. This proceeding is clearly regular as against the wife — she had the privilege (and her husband through her was entitled to the same) of pleading plene administravit, but this was not done. The husband could have appeared, and under our practice, upon a suggestion of the marriage, have been admitted as a party, but he failed to do this. It is said he received no notice. This was his misfortune, if he has been injured by the want of it, and the fault of his- wife( the administratrix, in not advising him. But the creditor is not to be prejudiced by his failure to come forward and defend. True, the latter could have become the actor under the statute by scire facias in making him a party, but he was not bound to pursue this course, and could, as we have shown, proceed against the wife alone.
The record then furnishes the evidence of a devastavit against the wife. This is very clear. The next question then is, whether the husband is liable for her devastavit, and upon this point the authorities all agree that he is, whether the waste occurred before or pending the coverture, if his liability is fixed before the death of the wife. So, on the other hand, it is held that if the husband, who takes upon himself the administration in right of his wife, commit a devastavit and die, the wife, surviving him, is liable for his waste. Such was the decision in Anngell v. Sir Wm. Cooper, Croke Chas. 519 — see also, Com. Dig. 209; Cro. Jac. 191; 1 Roll. Abr. 931. The English practice in such case is, that after an execution of fieri jadas de bonis testatoris has been returned “ nulla bona,” the plaintiff suggests a devastavit upon the roll, and a writ of scire fieri inquiry is awarded, and if the sheriff return a devastavit, he is *96required to summon the husband and-wife, executor, See. tcshow cause why execution- de bonis propriis should not issue — ' (Lord Mounson v. Bourn, Croke Car.527) — but the party may resort to suit upon the judgment, as with us-. — 1 Roper on Hus. & Wife, 202.
We have thus far treated'the case,as though a Return of nullabona upon an execution issued on the driginal judgment'had to-be made to fix the liability of the-wife; but’it-seems to he set-tied, that where the suit is upon-’ the original judgment, and a. devastavit is charged in the declaration, it is not required that, any fieri facias should have been sued out upon such original-judgment. — Roper on Hus. & Wife, 203, and cases cited; Sid. 397; 1 Wils. 258; 3 T. Rep. 685. We see no difference in. principle,, as the husband is liable for the devastavit of the wife,, whether committed before or pending the coverture, between concluding him by a judgment rendered against her, whether judgment be rendered previous, or subsequent to the marriage; and since the judgment is confessedly valid, notwithstanding the intervening coverture, and the husband by the marriage assumes a joint liability with the wife for the waste, which it is alleged she has committed of the assets of the estate, it is clear, we think, that the plea which relies upon the intervening marriage as a bar to this suit, brought to recover upon the judgrment, on a suggestion of the waste, is bad and should have been, so adjudged.
It is argued, that if the original- judgment 'is binding on the' husband, the wife, who cannot bind him by contract, may ruin, him- by permitting- judgments in such cases to go against her, without bis knowing any thing about the proceedings which, result in their rendition. To this it may be replied, that the husband is only liable for the devastavit of the wife — for her misapplication or waste of the assets of the estate, and she has power equally to ruin him in the commission of numberless torts for which he may be required to respond in damages.
We have endeavored maturely to consider the questions involved, and have carefully examined the authorities, a few only of which we have cited, and our conclusion is, that the first count in the declaration is good. The second is defective in not avering the marriage of Mary Ann Acre with the defendant, Browner, thereby imposing upon him an obligation to pay the *97judgment set out in that count as recovered against her. The plea should have been held bad upon the demurrer.
Let the judgment be reversed and the cause remanded.