
    Martha Surtell ads. William Brailsford.
    
      Charleston District,
    1801.
    A married woman keeping a sliop aud carrying on trade in her own name, and on her own account without the interference of her husband for a number of years will constitute her a sole trader at common law.
    Coverture’ ought to be pleaded in abatement; it is too late to make it a ground for a motion to set aside a judgment 12 years after it was entered up.
    No writ of error allowed in this state, as every advantage which could be derived from it may be taken on motion in the constitutional court of appeals.
    Court will not unravel proceedings or judgments after several years acquits--eence.
    UPON a motion to set aside a judgment on the ground, ,that the bond on which this judgment was obtained, was given bv defendant while she was under coverture.
    On the inspection of the record and proceedings in this case, it appeared that judgment by default had been obtained in this case, in September 1789, which had been duly entered up, and remained unsatisfied till the present day.
    Mr. Cheves, for defendant,
    produced her affidavit, in which she swore that at the time this bond was given, she was a married woman and under coverture; although it was alleged that her husband was since dead, and she was then a widow.
    For the plaintiff, in reply, it was urged, and it was not denied, that at the time when the defendant gave the bond in question, she carried on business as a milliner and shop-keeper in her own name publicly in Broad^street, as a feme sole dí aler, and continued to do so ever since ; and had during all that time, transacted business as a sole dealer in her own name, without her husband’s ever being known, or in,any way whatever interfering with her business.
    Mr. Cheves, in her behalf, proceeded in his motion,
    and contended, that coverture was a good ground for setting aside the proceedings in this case, as it was well known in law, that the acts of a married woman were void, as her civil capacity as to contracts was so incorporated with that of her husband that she could make no valid contract whatever, and that if she did presume to enter into any, it was ipso facto void.
    Thai this was one of the grounds for reversing proceedings in error, but as no writ of error had been allowed in this country, alL the advantages which could in England be derived from it, ought to be allowed on motion in this court*, which among other great objects of its jurisdiction was the proper court for the correction of errors. In fact, he said, errors and appeals were the great branches of its jurisdiction which was secured by the constitution to the citizens of this country, and that there was no other mode of getting redress in all cases of error but by motion m this court.
    He then proceeded to shew, in what cases error in England would lie, and that this was expressly one of the cases contemplated by all the books for reversing proceedings in error, and for that purpose cited Salk. tit. Error. Eac. tit. Error. Barnes’s Notes, 270. 2 Will. 3.
    Mr. Pringle, on the same side,
    quoted Mrs. Rippon’s case, who was discharged after she was taken on a ca. sa. on the ground that she was a married woman; he also quoted 2 Eac. tit. Error, 487. but said, the case in 2 Will. 3. cited by the counsel who had preceded him, was so strong, that it would be a waste of time to quote more authorities on the occasion, where it is expressly laid down, that a judgment confessed by a feme covert is void, and so is her bond.
    Mr. Simmons, against the motion,
    admitted that the general position was true, that the contracts of a married woman were void, and that many adjudged cases in the books, and some in our own courts supported and proved the general doctrine of the law on that head ; but to this general rule of law there were exceptions ; as where a married woman carries on trade by herself, in which her husband does not intermeddle, and buys and sells goods in that trade, she shall be considered as a feme sole at common law, and shall be liable on such contracts ; Cro. Car. 69. Shorn. 184. Skin. 67. Lev. 131. and this point had been determined in this court after solemn argument in the case of Nexvbiggin v. Pillans and Wife ; so that he considered that case as settling the law upon this subject. As to the facts of this case, it was notorious and would not be denied; that tbe defendant carried on business as a milliner and shopkeeper in Charleston, as a sole dealer for ten or twelve years, and upwards ; and no person ever knew or heard of her having a husband, until her affidavit was brought forward on the present occasion; and this husband, if he ever existed, never was in this country, but died in England, so that he never intermeddled in her trade and shop-keeping business ; that she is to be considered as a feme sole dealer at common law, to all intents and purposes, and liable as such.
    Another ground, he said, on which this motion should be rejected, was, that it was too late after a lapse of twelve years. He admitted, that the writ of error was unknown in this country, but said that every possible advantage which could be derived from that process in England, might be taken advantage of in this court on motion.
    This court has by the constitution, a general and superintending power and control over all the other courts in the state, to reverse and set aside all irregular proceedings, and to correct all errors and mistakes in pleading, and in the conducting of suits, provided such motions are brought forward in a reasonable time, agreeable to the rules and regulations prescribed for that purpose. But if persons would lay by, and not avail themselves of this advantage in due time, it is their own faults; they have themselves to blame for it.
    Previous to the passing of the state constitution, an adjournment day was allowed after the conclusion of every term, which did not exceed twenty days after the end of each court, for bringing forward before all the judges, all motions for the correction of errors and rectifying mistakes, or for the advancement of justice, as the parties might think proper ; here was a legal and proper opportunity allowed by law for all such motions.
    This was thought so important a tribunal in this country, and so necessary for the great ends of justice, that the citizens of this state, in forming the constitution would not let it longer depend on an act of the legislature, which might be altered at pleasure, but erected and created a new tribu» nal, composed of all the judges in the state ; to which an appeal might be made from all the other courts of the state for justice, agreeable to law, on all points whatsoever. This is the dernier resort of all the citizens. This is also a tribunal for the speedy determination of all law points, (without that delay which is experienced in some countries to the reproach of justice,) and to this court the defendant might have appealed in time if she had any justice in her case, but it is now too late ; the rules require that at the next sitting of the constitutional court, after the conclusion of every circuit court, every party, or attorney who may think proper to bring forward any point of law, for the determination of the court, shall give notice of his grounds in writing, on which he intends to rest his motion, to the opposite party ; and shall also furnish the judges with briefs, setting forth the nature and circumstances of this case, on the first day of the sitting of the court of appeals at Columbia, and three days before the meeting of the court in Char lemon. And the parties bringing forward such cases, are required to enter their cases with the clerk on the paper of causes or docket to be kept for that purpose ; and in every case where such notice is given, the attorney who gives it shall prosecute his case to a decision, agreeable to his notice ; and if he does not, then the adverse party is to be at liberty to proceed as if no such notice had been given ; no further delay is allowed, unless upon good cause shewn to the court, a further time is given for that purpose. These are the rules by which this court is governed ; and if parties will not conduct themselves agreeably to them, they are forever afterwards excluded.
    Has the defendant then complied with these rules ? It is not even pretended that she has ; but, on the contrary, has suffered judgment to pass against her, and has allowed it to remain unsatisfied for twelve years ; and now, at this distant day, she comes forward to have it vacated. At this rate, a party might as well come forward at the distance of 20 years, or at any future indefinite period.
    
      Besides, he observed, that if the court would only once opea a door, and make a precedent of unravelling and setting aside judgments after such a length of time, for errors and mistakes which ought immediately to have been cor-re-. ted, alter the time when the proceedings were filed, the time of the judges would almost be wholly occupied in revising and examining old judgments ; there would be no end to applications of this kind. The court, therefore, he said, ought to set their faces against cases of this motion, as tending to render all judgments insecure and uncertain. He also observed, that such a proceeding would be opposed to ail the statutes of jeofails, made to secure verdicts and judgments.
    Another principal objection to setting aside these proceedings was, that coverture ought to have been pleaded in abatement, and as it was not, it is now too late to take advantage of it. 3 East, 631. Lord Kenyon expressly lays it down, that coverture should be pleaded in abatement, when a married woman is either plaintiff or defendant.
    As to Mrs. Ripporüs case, she was a feme sole dea.er, but in the bond on which she was sued, that was not stated or mentioned ; the bond was from Barnard Rippon and wife, and judgment was entered up against Rip¡,on and wife, and after she was taken on a ca. su. on motion, she was discharged, because in no part of die proceedings was it stated that she was a sole dealer; but the plaintiff had leave to go on against the husband.
    In the present case, the husband’s name is not mentioned, even for conformity s ike. He was utterly unknown, and it was not even clear that she ever was married ; and there, is nothing but her own affidavit to that fact, which would not have been evidence on a trial to prove coverture.
   The Judges,

after duly considering this case, were of opinion, that the motion should be refused, on the ground that it evidently appears from the circumstances of this case, that the defendant kept a shop, and carried on business in her own name, apart from her husuand, (if she ever had one,) and in which he never intermeddled for the space of ten or twelve years, which constituted her a sole dealer at common law, as was determined in the case of Newbiggin v. Pillans and Wife; consequently, as such, she was liable on her own contracts.

Secondly. That coverture ought to have been pleaded in abatement, as laid down by Lord Kenyon, in 3 Durnf. and-Past.

And, lastly. Because it would be a most dangerous thing to set aside a judgment and proceedings twelve years after final judgment was signed and entered up; there would be no end to applications of this sort, if once a precedent was established for that purpose. That the writ of error was unknown in this country; it never was in use, and indeed it is totally unnecessary, because every advantage which could be derived from that process may be obtained by motion in this court, if its rules and proceedings are adhered to; but if pat ties will not bring themselves within those rules in time, it is their own faults, and they must abide the consequences of it.

Let the rule for setting aside the judgment in this case be discharged.

Present, Grimke, Waties, Bay, Johnson and Treze* VAST.  