[Steiner Bros. v. Stewart.] plaintiff amended her complaint by striking out Dallas as a party defendant, leaving it as a complaint against the two named Steiners doing business as Steiner Bros. After appeal to the city court, she again amended her complaint the effect of which was to eliminate as parties defendants Sig and Bernard Steiner doing business as Steiner Bros. and to substitute in their stead as a party, Steiner Brothers, a corporation. The point was made in the court below, by proper objection, and is urged here that the amendment wrought an entire change of parties. The suit was clearly one against the two Steiners as individuals and not against Steiner Brothers, a partnership, if it be conceded that the averment sufficiently shows that Sig and Bernard Steiner were partners doing business under that firm name.-Compton v. Smith, 120 Ala. 233; Baldridge v. Eason, 99 Ala. 516; Blackman v. Moore-Handley Hardware Co., 106 Ala. 458; Bolling v. Speller, 96 Ala. 269; Ladiga Saw-Mill Co. v. Smith, 78 Ala. 108; Shapard v. Lightfoot, 56 Ala. 506. We have then to deal with an amendment that eliminates the only two parties defendand and inserts in their place an entirely different party, a corporation. It is clear this cannot be done. For the words after the names "Sig Steiner and Bernard Steiner," the only parties sued, to-wit: "doing business as Steiner Bros." were merely descriptio personae of Sig and Bernard Steiner, and, therefore, not material. The effect of the amendment was, as we have said, to strike out the only parties sued and leave the description—the immaterial part-and to add an en-. tirely new party defendant. The case, therefore, is not within the principles as applied in Ex parte Nicrosi, 103 Ala. 104, where descriptive words were eliminated by amendment and other descriptive words were substituted, but directly within the principles declared in Daris Ave. R. R. Co. v. Mallon, 57 Ala. 168; Western R'y of Ala. v. McCall. 89 Ala. 375; Vinegar Bend Lumber Co. v. Chicago Title & Trust Co., 131 Ala. 411, and Hallmark v. Hopper, 119 Ala. 78. Reversed and remanded. [Linam v. Jones.] Linam v. Jones. Attachment Suit by Landlord for Rent of Land. 1. Attachment in justice's court; defects in affidavit can not be complained of for the first time in the circuit court.-On an appeal to the circuit court in an attachment suit commenced in a court of a justice of the peace, advantage can not be taken of the defects in the affidavit upon which the attachment was sued, which were not objected to before the justice of the peace; since such objections made for the first time in the circuit court, come too late. payment of rent death of a tenant 2. Statute of frauds; when contract for the not within the statute.-Where after the during the term of his lease, his wife, who remains upon the rented premises, agrees, in consideration of her retaining possession of the land for the balance of the term, to pay the rent which her husband had promised to pay, such agreement on the part of the wife is an original and independent undertaking by her, and is not within the influence of the statute of frauds. 3. Peading and practice; effect of joining issue on immaterial pleas. Where issue is joined on a plea or replication which sets up immaterial matter, evidence which tends to support or defeat such plea or replication is relevant, and if otherwise competent, should be admitted. 4. Landlord and tenant; admissibility of evidence.—In an action by a landlord to recover rents, where issue is joined upon a special replication which raises the question of plaintiff's ownership of the rented premises, it is permissible for the defendant to show that the plaintiff did not own said. land; but a deed executed by the plaintiff prior to the making of the lease is not admissible in evidence, where it is not shown or offered to be shown that the land conveyed in said deed was the land included in the rent contract. 5. Landlord and tenant; pleading and practice; admissibility of evidence. In an action by a landlord to recover rent, where the defendant by special plea sets up the payment of the rent to a third party, and the plaintiff in his replication to such plea ignores the averment contained therein that the [Linam v. Jones.] defendant had paid the rent to a third party, and the defendant, without demurring thereto, joins issue on said replication, by so aoing the averment in defendant's plea of payment of rent to a third party ceases to be an issue in the case; and, therefore, in such a case, it is not error for the court to refuse to permit the defendant to prove that the rent had been paid to a third party. 6. Action for rent; when complaint fails to state a cause of action. A complaint in which "plaintiff claims of the defendant twelve hundred pounds of lint cotton or its alternative value, one hundred and eight dollars, the rent of a tract of land," which is described, for a designated year, does not state a cause of action and will not support a judgment in favor of the plaintiff. APPEAL from the Circuit Court of Monroe. Tried before the Hon. JOHN C. ANDERSON. This was an action brought by the appellee, J. B. Jones, against Mary Linam and was commenced before a justice of the peace, the plaintiff suing out an attachment as landlord for the collection of rent alleged to be due. After judgment rendered in favor of the plaintiff by the justice of the peace, the defendant appealed to the circuit court. The complaint was in words and figures as follows: "The plaintiff claims of the defendant twelve hundred pounds of lint cotton, or its alternate value, one hundred and eight dollars, the rent of a tract of land, viz: One hundred and twenty acres of land, more or less, known as the J. B. Jones place in Monroe county, Alabama, which was demised by the plaintiff to the defendant in the year 1900, and for the year 1900." To this complaint the defendant filed the following pleas: "1. General issue, with leave to introduce in evidence any matter that could be specially pleaded." 2. "That the contract which is the foundation of this suit was a special promise to answer for the debt, default or miscarriage of another, and that such special promise was not in writing expressing the consideration for such promise. Therefore, this defendant is not liable in this action." 3. "That the contract which is the faundation of this suit was without consideration [Linam v. Jones.] in this, that Henry L. Linam, who was the husband of this defendant, rented from the plaintiff as agent of M. A. Jones, certain lands in Monroe county, Alabama, for the year 1900; that during the month of April, 1900, said Mary L. Linam became dead; that the rent was for two bales of lint cotton weighing six (6) hundred pounds, which was due on the first day of November, 1900; that subsequent to the death of the said Henry L. Linam on, to-wit, the 22d day of October, 1900, this defendant agreed with the said J. B. Jones as agent of M. A. Jones to pay the amount of rent due by said H. L. Linam to the said J. B. Jones as agent of M. A. Jones; that at the time this defendant agreed to pay said rent, she was in possession of and residing upon the lands rented by her husband, H. L. Linam, and was so residing at the time of the death of the said H. L. Linam Wherefore, this defendant is not liable to the plaintiff in this cause." 4. "That the contract which is the foundation of this suit was without consideration in this, that Henry L. Linam, who was the husband of this defendant, rented from the plaintiff certain lands in Monroe county, Alabama, for the year 1900; that during the month of April, 1900, said Henry L. Linam became dead; that the rent was for two bales of lint cotton, weighing six (6) hundred pounds, which was due on the first day of November, 1900; that subsequent to the death of said Henry L. Linam on, to-wit, the 22d day of October, 1900, this defendant agreed with the said J. B. Jones to pay the amount of the rent due by said Henry L. Linam to the said J. B. Jones; that at the time this defendant agreed to pay said rent, she was in possession of and residing upon the lands rented by her husband, H. L. Linam, and was so residing at the time of the death of the said H. L. Linam. Wherefore, this defendant is not liable to the plaintiff in this case." 5. "For answer to the complaint this defendant says that in the early part of the year 1900 ,her husband, H. L. Linam, rented of J. B. Jones, agent of M. A. Jones, certain lands in Monroe county, Alabama, for the year 1900, agreeing to pay two bales of lint cotton, weighing six (6) hundred [Linam v. Jones.] pounds, due the first day of November, 1900; that under said agreement of rent said H. L. Linam, who was the husband of this defendant, went into possession of said lands, and that this defendant was in possession of said lands as wife of said H. L. Linam; that during the month of April, 1900, said H. L. Linam became dead, that during the month of May, 1900, said M. A. Jones became dead; that said M. A. Jones had only a life interest in the property rented to said H. L. Linam, and at her death the property be came vested in Minnie and Lucy Jones, minors; and that on the 26th day of October, 1900, before said rent became due, and after the death of said H. L. Linam and M. A. Jones, a notice was served on this defendant by F. J. Dean, as next friend of Minnie and Lucy Jones, demanding that this defendant attorn to him as next friend of Minnie and Lucy Jones, as tenant for such lands, and that after receiving such notice this defendant did pay to said Minnie and Lucy Jones the rent due on said lands. Wherefore, this defendant is not liable in this action." 6. "Answering to the complaint in this cause, this defendant pleads and says that during the early part of the year 1900, H. L. Linam, who was the husband of this defendant, who became dead in the month of April, 1900, rented of J. B. Jones certain described lands in Monroe county, Alabama, for the year 1900, and agreed to pay as rent thereof, two bales of lint cotton, weighing six (6) hundred pounds each, and that on the 22d day of October, 1900, this defendant agreed with said J. B. Jones that she would pay the rent which the said H. L. Linam had contracted with said J. B. Jones to pay; that at the time that this defendant agreed to pay said rent, she was under the impression and was so informed by J. B. Jones, that he was owner and had legal title to said lands, and that it was with this understanding and this agreement that she agreed to answer for the debt of her husband, H. L. Linam; that subsequent to such an agreement, to-wit, the 26th day of October, 1900, she was informed and ascertained that J. B. Jones was not the owner, and did not have legal title to the lands rented by her husband from J. B. Jones, |