
    Clara Newton versus Robinson.
    If a feme covert sues alone, the defendant cannot take advantage of her coverture, on a motion for a nonsuit.
    THE plaintiff had been summoned a witness in a cause, wherein the defendant, being the party cast, became liable to pay the costs; in order to recover the amount of her ticket, she warranted him before a Magistrate, from whose judgment an appeal was taken to the County Court, and the cause was thence brought in the same way to this Court. Pleas, general issue and set-off. It appeared in evidence that the plaintiff, as well at the time of being summoned, as of attending as a witness, was a feme covert, and that her husband was still alive; whereupon Haywood moved that she should be non-suited, urging that any judgment rendered for her would be absolutely void. The motion was over-ruled by the court, and a verdict found for the plaintiff. Afterwards, in the same term, the question was renewed in the form of a motion to set aside the verdict.
    
      
      Haywood, for the defendant.
    Upon examining the authorities relative to the question that was made on the trial of this cause, I am apprehensive that a mistake has been committed in delivering the law. They will, as I conceive, shew that it was not necessary to plead the coverture in abatement, and that no judgment can regularly be given upon this verdict. It is a general rule that no plea in abatement is good, unless it give the plaintiff a better writ; and hence it follows that in those cases where the plaintiff cannot have a better writ, the defendant cannot plead in abatement. Here the money was due and payable to the husband alone; the plaintiff, if she survive, cannot recover it; consequently she cannot join with him in bringing the action. As therefore she can have no writ, either separately or joined with her husband, no plea in abatement would have availed the defend ant. All the cases which will be relied upon, on the other side, to prove the contrary position, will be where the cause of action accrued before the coverture, and where, consequently, the husband and wife might join, because it would survive to the latter. Nor can any case be shewn where coverture is pleaded in abatement to an action brought by a feme covert, upon a cause of action arising during the coverture. So far has the principle been extended, that the earnings of a wife during coverture belong to the husband, that even what has been thus acquired by a wife de facto, has been held to belong to the second husband, he having no notice of the former marriage; 1 Strange 80. It is no less clear that a judgment rendered in favour a feme covert is absolutely void; 2 Wils. 3. and that the coverture may be given in evidence; 1 Strange 79. Buller 21, 113; 6 Term Rep. 265. He also cited 1 Wils. 224, in order to shew that wherever the cause of action will survive to the wife, they must join: whence he interred that a joinder under any other circumstances would be improper, and furnish a good ground of demurrer to the declaration.
    
      Norwood and Cameron for the plaintiff.
    Coverture in the plaintiff can only be pleaded in abatement; to prove this we rely on Comyns, Dig. tit. Pleader, 2 a 1. and 3 Term Rep. 627. As the cause of action arose from the personal labour of the wife and was founded on the certificate of her attendance as a witness, she might have been joined with the husband; 2 Bl. Rep. 1239. Cro. Eliz 61. Cro. Jac. 205. 2 Wils. 424. Hence as the plaintiff, by joining with her husband, might have had a better writ, the arguments drawn from the contrary supposition, to prove the impossibility of pleading in abatement, lose all their force. Here the defendant, by having pleaded in bar, has admitted the plaintiff able to recover judgment, and therefore she cannot be disabled from having execution, by any thing which has happened precedent to the judgment; 2 Ld. Ray. 853. In the case cited from 2 Wils. 3, the judgment was entered up by confession, upon a warrant of attorney, in which case the defendant had no day in court to plead the coverture, and there was no other way to examine the matter but by motion.
   By

the Court.

It is laid down in the books, as a general rule, that coverture either before the writ sued out, or pending the writ; is a good plea in abatement. If those cases where a feme covert sues upon a cause of action arising during the coverture, really formed an exception to the rule, it certainly was of too much importance to have been overlooked by writers upon this subject: yet no trace of a distinction arising from this source is any where to be discovered. It is indeed said in 1 Bac. 16, that by coverture before the writ, it is abated de facto, whereas coverture after the writ only proves it to be abatable; but the fame writer proceeds by adding that both are to be pleaded: and this is also established by the case cited from 3 Term Rep. If that be correct, the present case is not affected by the distinction. The meaning of it, however, I take to be this, that where it appears upon the face of the writ itself to be false, or that any judgment rendered upon it would be erroneous, the court may interpose ex officio, and abate it without plea; but that whenever the circumstances tending to shew the defect, is extrinsic, it ought to be pleaded. To apply this criterion to the present case, let it be enquired whether this judgment be erroneous? I think both authority and reason decide that it is not. It is said in Carthew, 124, that a judgment rendered in favour of a feme covert who sues by attorney, cannot be reversed for error, if the defendant pleads in bar. The very same point is adjudged in 10 Mod. 166, and it is precisely the case under consideration. The reason upon which these decisions are founded is, that the coverture might have been pleaded in abatement, and that what may be so pleaded, cannot be taken advantage of in error. In the view of justice and propriety also, it is right, that if a defendant pleads to issue, (thereby treating a feme covert, as if she were sole, and compelling her to summon witnesses, and prepare for a trial on the merits, when he might have abated her writ at the outset,) he should be bound by the judgment. I incline to think that the cases cited on behalf of the plaintiff shew that she might have joined her husband in this action, for the reasons that have been given, though I do not give any positive opinion on this point, as I conceive it unnecessary in the decision of this cause. For though the rule mentioned, that a defendant pleading in abatement must furnish the plaintiff with a better writ, be general, it is far from universal; and it cannot consistently with reason apply to this case. This is a plea to the disability of the person of the plaintiff, founded on her legal incapacity to bring a suit; this alone is stated in the forms of such pleas, which do not prescribe any method in which she may bring another writ. It resembles the pleas of alienage, and those of outlawry, Which presuppose that the plaintiff can bring no suit at all, while the disability lasts. In strict language, these are not actually, but only in the nature of, pleas in abatement. Wherever the exception points to the writ or declaration, the defendant must furnish the plaintiff with a better, but where it questions the very power and capacity of the plaintiff to sue, it cannot be thought necessary for the defendant to do a thing, upon the absolute rejection and denial of which his defence is built. Upon the whole I think the motion must be

Over-ruled.  