The reason assigned by the trial judge for directing a non-suit on motion of the defendant against the objection of the plaintiff, was that “Samuel Adams was a necessary party plaintiff in this cause.”
It appears that the only pleas filed by the defendant were, the general issue, payment, set-off, want of consideration and failure of consideration. In some jurisdictions, under the plea of the general issue, where the action is ex contractu, advantage may be taken by defendant of non-joinder of parties plaintiff.” As a general rule, the objection of the non-joinder of proper parties should be taken advantage of by plea in abatement or answer in the nature, thereof when the objection does not appear on the face of the record and by demurrer when it does so appear.”. — 1 Ency. PL & Pr., 14 and note 6. In this State the latter rule prevails. — Garner v. Tiffany, Wyman & Co., Minor Rep. 167.
The action of the court in entering the non-suit cannot be sustained upon the proposition that the suit was revived in the name of the present plaintiff as administratrix appointed as such in the State of Pennsylvania, and that there was no proof made by her of a compliance with the provisions of section 359 of thejpode.
Her want of authority \o maintain this suit is a matter of plea he ungues executrix or no ungues administratrix. If she had not complied with the provisions of the section above referred to, that is a matter of defense which must be specially pleaded; otherwise it is waived. Hatchett v. Berney, 65 Ala. 39; Cloud v. Golightly, 5 Ala. 653.
We must decline to determine whether the cause of action was joint or several, for the reason that that question is not raised by the pleadings.
Under the issues upon which the cause was tried and the undisputed evidence adduced in support of them, the plaintiff was entitled to have the court instruct the jury as requested in her two-written charges, and the refusal to give them was error.
The judgment must be reversed and the cause remanded.