After confession of the plea in abatement and leave obtained to amend the complaint, without further objection the cause was proceeded with and subsequent pleadings on both sides were conducted, in the plaintiff’s name as it had been furnished in the plea. By so proceeding without requiring the plaintiff to actually amend, the defendant will be held to have waived the irregularity, and to have consented to treat the complaint as amended to conform to his plea.
Pleas 3, 10 and 11 are each bad. A married woman’s contractual incapacity as it existed under the Code of *631886 was intended for lier protection, and other dealings with her could take no advantage from- it. Her contracts were not void and- were voidable only at her election, and until so avoided were binding on the other party. — Scarbrough v. Borders, 115 Ala. 440; Marion v. Regenstein, 98 Ala. 478; Moore v. Price, 116 Ala. 249.
The sanie principles apply though the plaintiff conducted a business without her husband’s written consent as- averred in plea 11. There was no law prohibiting her from so conducting business without such-consent, or avoiding the obligation of others to pay for goods bought of her other than liquors. Plea 11 was so far -without merit that'it may be classed as frivolous, and it was, therefore, within the court’s discretion to allow it stricken out instead of putting the plaintiff to her demurrer.
Plea 4 in setting up three instead of six years in bar of recovery -on the stated account declared on in the second count, was subject to the demurrer.
By introducing the plaintiff’s account in evidence in his own behalf the defendant waived objection to its - introduction by the plaintiff.
The giving of a check by defendant' to the plaintiff was admitted, and the entry made by defendant on the stub of the check, of the purpose for -which it was given was but the defendant’s secret declaration and as such was not evidence against the plaintiff. The stub was properly excluded from the. evidence and the defendant was not injured by its- being detached from his deposition.
Besides items for groceries and other goods, the account sued on and introduced in evidence included charges for whiskey the items of which ranged from 5 cents to $2. The quantity of whiskey was not stated in every item and it is not shown on the face of the account that at any time the quantity sold was less than one quart. The only liquor license produced by He plaintiff was one granted to her husband which was excluded by the court. For the defendant it is insisted that without production of a proper license no right of recovery was shown and the general charge requested by the defendant should have been given. Section 3522 *64of the Code provides that “No person must obtain a judgment in any court in this State upon any account any item of which is for vinous or spirituous liquors in less quantities than one quart, without producing to the court a license showing his authority to retail at thé date of such item.”
In Rasberry v. Pulliam, 78 Ala. 191, it was said of this statute that it “gives the defendant matter of defense which he may waive if he chooses.” The court further said that “when the suit is on a note not disclosing' the consideration the defense must be made by special plea, and without such special plea is considered as waived.” Whether when the suit is on an account the defendant’s failure to plead the defense specially will waive it we need not now decide. Defensive matter need never be shown by the plaintiff, either in pleading or proof in order to make out a prima facie case, and unless the defensive facts appear from some source by uncontradicted and direct evidence the court will not assume their existence by charging affirmatively for the defendant. Those facts did not so appear in this case.
Other than the price charged for items of whiskey included in plaintiff’s account, the record contains no evidence that the whiskey sold was at retail except from the defendant’s statement in testimony that he bought some drinks and had them charged to himself. Whether those drinks entered into this account he does not state. From such testimony it is only by uncertain inference that the conclusion can be reached that the whiskey in question was sold in quantities of less than one quart, and to draw such inferences was not within the province of the court. — Baker v. Troy Compress Co., 114 Ala. 415; Cole v. Propst, 119 Ala. 99.
What we have said on the effect of plaintiff’s coverture disposes of charge 2.
As to a few goods bought on his own account the defendant did not by evidence deny his indebtedness. For their value, the plaintiff might have had a verdict though the weight of evidence had not been in his favor on the contested issue as to whether the defendant was chargeable with the remainder of the goods which were *65furnished to his tenant. For that reason charge 4 ivas incorrect in directing a verdict for defendant on the whole case on the hypothesis stated in that charge.
Charge 6 was properly refused. Besides item’s for whiskey the account contained charges for other goods most of which were disputed on the trial. Evidence to determine which charges were improper and so to separate them from those which were proper might have been furnished as well by the defendant as by the plaintiff. For that purpose it was proper to consider the wdiole evidence.
There was no issue made involving the statute of frauds or which would otherwise have warranted the giving of'charge 7. The statute of frauds to furnish a defense must be specially pleaded. — Lagerfelt v. McKie, 100 Ala. 430.
We find nothing in the record.for which a new trial should have been awarded.
Affirmed.