
    OWENS vs. SHERITS.
    In Error. This was a petition for a legacy in the county court, under the act of 1762, c. 5, upon which the county court made a decree.
    The errors assigned were,
    1st. That no process or copy of the petition were served on the defendant.
    2d. That the defendant never was executrix as charged in the petition.
    3d. That the first order for taking the petition pro confesso, was erroneous.
    4th. The second order for taking the petition pro confesso nunc pro tunc, was also erroneous.
    5th. The judgment purports to have been given after the trial of an issue of fact, where none appears.
    M'Kinney for the plaintiff in error.
    In this case there is the general plea of in nullo est erratum and joinder.
    The second error assigned is of matter of fact,and the rule is, if matter of law and of fact be assigned for error, and the defendant in error pleads generally, as in this case, the plea admits, that there is error in fact, and consequently the judgment must be reversed.  In this case the defendant should have demurred for duplicity.
    Parsons and Kennedy for defendant in error.
    The exception that the plaintiff in error never was executrix could have no weight, as it was matter proper to be pleaded in abatement, and cannot be assigned for error. The 23d section of the act of 1762, c. 5, says “that the court shall proceed to hear the same according as the matters of law and equity shall appear to them, without regard to form, or want of form in the petition, process or course of proceeding.” From the record it appears, that a pro confesso was entered against the defendant, that she afterwards appeared by attorney, and upon motion, the pro confesso was set aside, and time given to plead until the next term. At this term the defendant failed to plead, and the court directed the former order allowing time to plead, to be set aside, and a pro confesso nunc pro tunc; the record further states, that a jury was immediately impannelled to try an issue of fact, and that the jury assessed damages to the sum mentioned, for which the court gave judgement; this is a complete view of the subject, The substance of the act of assembly and principles of justice have been complied with.
    
      
      2Bac. Ab. tit. Error,G ib. I.
    
    
      
       Bac. Ab. tit. Error, I. ib. H.
    
   Overton, j.

agreed in principle with the argument of the defendant's counsel that appearance waived all the irregularities which had taken place; and was of opinion that the judgement should be affirmed.

Campbell, j.

was of a different opinion. It was agreed that the cause should lie over until another judge attended. 
      
       Barnes 424. 1 Hay. 406 1 Bos & Pull. 250 2 Wils. 3 Hen. and Mun. 309, 1 Crompt. P. 100.
     