The opinion of the Court was delivered by
Williams, J.The plaintiff in error asks to set aside the judgement of the court below for an error in fact. It appears that after the commencement of the suit in the name of the defendant in error against the plaintiff, Bates, the defendant in the suit below appeared, and pleaded the general issue — that during the pendency of the action the plaintiff in that suit intermarried with one French, on the 10th of September, A. D. 1829 — that after this, at the April term, in 1830, a trial was had on the issue before mentioned, and a judgement rendered thereon against Bates, which he reviewed. At the September term of the court in 3 830, a final judgement was rendered against him on default, in the name of the said Lydia Stevens, the defendant in error. The question submitted is, whether a judgement in the name of a feme covert, without her husband, is erroneous, and whether such judgement can be reversed on a writ of error ?
It is laid down in general terms in Tidd’s Practice, 2 Vol. *5471107, that the coverture of the plaintiff or defendant, at the mencement of the suit, is ground of error. This can only be true, when the judgement is against the person under coverture, and she and her husband bring the writ of error to set it aside. 0 , The form in the appendix to Tidd, to which reference is had-, shows that he referred to a case of this kind. In the case of Coan vs. Bowles et al., Carthew, 123, it was decided, that if a married woman commence an action against any one, and the defendant plead in bar, he shall never after assign this marriage for error ; for it was his folly not to have availed himself of it in season by pleading it in abatement. This principle has never been controverted; but the case has ever been recognized as an authority by Bacon, and also by Swift. — Swift’s Dig. 1 vol. 791.
The coverture of the plaintiff may be pleaded in abatement; and, if it takes place after the commencement of thé suit, must be pleaded in abatement, and cannot be given in evidence unde.r the general issue. In a case in Shower, 171, it was decided by Holt, C. J., that if a feme .co.ver.t bring an action as a feme sole, and defendant pleads in bar, he shall never assign this for error.
It is said there is this distinction between the cases where the coverture of plaintiff was before, or after the suit commenced : that coverture before the commencement of the suit may be pleaded at any time, because the suit is thereby in fact abated ; but coverture after suit brought must be pleaded post ultimam continnatlonem.
Inasmuch as the plaintiff rightfully commenced the action, the .defendant may wavie any advantage on account of the coverture, and plead any defence which he has; and if he does not plead it after the last continuance, he relies on his first plea, and waives all advantage by reason of the coverture. But coverture, either before or after the commencement of the suit, must be pleaded in abatement if the defendant means to take any advantage of the same. — Milner et al. vs. Milner et al. 3 Term Rep. 627 ; Morgan vs. Painter, 6 Term Rep. 265.
On this principle it was held in a case in Rvlstrode, that if a feme marry after verdict and before judgement, she shall notwithstanding have judgement, and the defendant cannot plead this coverture, because he has no day in court to plead it, i. e. to plead it in abatement, as a verdict had been already given.
As the marriage of this defendant in error took place after the action was commenced, it was a proper subject for a plea in abate.*548ment. It was in the power of the plaintiff in error by such a plea to have availed himself of any advantage which the law gave him j. but as he neglected to avail himself of this advantage in due sea-son, went to trial on the general issue, and finally suffered a-judgement against himself by default, he must acquiesce in the’ judgement, and cannot assign this eoverture for error; for both reason and authority concur in saying, that a man shall never assign for error that which might have been pleaded in abatement* —2 Bacon, 492.
We have considered this case without reference to the statute of this state, because, as neither party have availed themselves of the provision of the statute, this case must be decided as though no such statute was in existence.
The statute provides, that the husband may join with the wife’ in prosecuting a suit commenced by her under certain regulations as to cost; but he must cause his name to be entered as plaintiff,- and lodge a certificate of his marriage with the clerk, on or before the third day of the term, next after the marriage. If he fails so to do, the defendant may, at any time thereafter, during the term, file a like certificate, and shall thereupon be entitled to a judgement against the husband and wife for the costs of the suit. After the term closes, neither party can avail themselves of the provisions of the statute, but the suit must go on as at common law without any benefit to be derived from the statute.
We find there is no error in the judgement of the county courts and the same must be affirmed.