
    
      D. Blythwood, ex’or. of Russell, vs. Rebecca Everingham.
    
    Where a married woman is sued as a sole trader, by pleading to the merits she admits her liability to be sued in that character.
    A plea to the merits, admits both the right of the plaintiff to sue in the character which he. assumes, and the liability of the defendant to answer in the character in which he is sued.
    
      Before Gantt, J. at Charleston, Spring Term, 1831.
    This was an action of assumpsit on a promissory note given by the defendant, whilst a feme covert, to the plaintiff’s testatrix. In the note the defendant entitled 'herself a sole trader, and the action was against her in that character. Her husband was joined in the action for the sake of conformity, but died before the trial. The plea was the general issue.
    His Honor, the presiding Judge, overruled a motion for a non-suit, made on the ground that the plaintiff should have proved that the defendant was a sole trader when the note was given. The plaintiff had a verdict, and the defendant appealed, and now renewed his motion for a non-suit, on the ground taken in the court below;
    Elliott, for the motion.
    -, contra.
   Curia, per

Johnson, J.

The question made in the case, is whether, under the state of the pleadings, the plaintiff was bound to show that defendant was a sole trader.

The general rule is, that every thing necessary to the plaintiff’s right to recover is admitted, which is not put in issue by the defendant’s plea; and it has been accordingly often held, that a plea to the merits admits both the right of the plaintiff to sue in the character which he assumes, and the liability of thq defendant to answer in the character in which he is sued, as in the common case of actions by and against executors and administrators and others, suing or sued in a representative character. Trapier vs. Mitchell, 2 N. & McC. 64. Here the defendant is sued as a sole trader. In that character she was capable of binding herself by contract, and having pleaded to the merits, she admitted her liability to answer in that character; and, according to the rule, the plaintiff was not bound to prove it.

Motion dismissed..

O’Neall, J. concurred.  