#### MARTHA A. LASSITER vs. CHARLES H. HARPER.

Where a judgment Was obtained before a justice of the peace against a husband and wife, on a bond executed by them during their coverture, and an execution levied on the land of the wife, and returned to the County Court, where, after the death of the husband, an order was made for the ■ sale of the land, Held, that the wife was entitled to a certiorari to the Superior Court.

The case of Dougan v. Arnold, 4 Dev. 99, cited and approved.

Appeal from the Superior Court of Law of Greene County, at the Spring Term 1849, his Honor Judge Battle presiding.

• This is an appeal from an order dismissing a writ of certiorari. The facts are these. The plaintiff Martha A. Lassiter was the wife of oneUzzell Lassiter, and, during'their coverture, they executed their joint bond to Harper for $94 SO, on which a warrant was brought and judgment rendered against both in March 1847. *393Afterwards the husband died and Harper sued out execution against the husband and wife, which the constable levied on the land of Mrs. Lassiter and returned the levy to the County Court, on the 2nd Monday of August 1847,. when, without taking any notice of the husband’s death, the Justice’s judgment was affirmed, and a venditioni ex-ponas was awarded, and, in October following, the plaintiff obtained this- writ. Her affidavit stated her coverture, at the time the bond was given and'the judgment rendered, and that it was rendered in her absence and without her knowledge. The counter affidavits of the creditors and the constable were put in, and stated that Uzzell Lassiter was insolvent, and that the debt was contracted for necessaries for his family, and that the articles were sold on the credit o.f the feme and her land; and that she made no objection to the judgment being given, on account of her coverture, nor prayed an appeal, but she acknowledged the justice-of the debt, and promised, at the time and also after the death of her husband, to- pay or secure it by a new bond; and that she so continued to promise, until she was advised by counsel at August Court, that she might avoid the payment by reason of her coverture, when she refused to give her bond ; but that she did not, even then, oppose the affirmance of the judgment and order of sale. In reply the plaintiff offered the affidavit of the magistrate, that Mrs. Lassiter was not present when the judgment was given, though it purports to have been rendered by confession ; and her own affidavit, that the debt was chiefly for spirituous liquors sold to her husband, who was very intemperate.

His Honor was of opinion, that the case was a proper one for a writ of error coram nobis, and not for a certiorari; and he dismissed the latter writ.

No counsel for the plaintiff.

Biggs, for the defendant.

*394Ruffín, C. J.

There is no doubt, that coverture in a defendant, at the time of the suit commenced, is error of fact, and it may ordinarily be corrected by writ of error cortan nobis Tidd’s. Pr 1137. Perhaps that remedy might be used in this case. We will not say, it could not. But, owing to the peculiar nature of the proceed» ings, the question dors not. seem free of difficulty. For, while the writ would necessarily go to the County Court, it is obvious, that there was no error there, but that it was in the proceedings before the Justice out of Court. From him the case went to the County Court upon execution, and, of course, not open to defence. The Court might probably hear and decide in a summary way an allegation of payment since the judgment rendered, or that there was personal property, or the like. But certainly no defence could be made there, which the party might have made before the Justice, and therefore this disability could not have availed her in the County Court, and there was no error in affirming the judgment. But it may bo admitted, that a writ of error would lie in such a case. Yet we think the feme is entitled to the remedy by certiorari also, and, indeed, that is the more convenient method of proceeding, and the better, because it opens the case to a final determination on the merits. She is entitled to the certiorari, as an extension of the privilege of making defence and appealing, of which she was deprived by the creditor’s suing her and taking judgment, when she was under the incapacity of coverture, and could neither plead nor appeal. As our law intends that every person may have a trial denovo of the facts, unless the party gives up an appeal by his own laches, it is clear thefeme is in this case entitled, as if she had been sui juris and had appealed. The objection, that no defence was made upon the trial of the warrant is nothing, as'she could not defend. Besides, judgments by default are set aside upon certiorari, and the defendant allowed *395to plead upon showing merits and that the omission to appeal did not arise from laches, Dougan v. Arnold, 4 Dev. 99 ; and there can be no clearer merits, than those of a woman, who has been prevailed on to execute a bond during coverture, whereby it is void. There is an attempt to answer that by bringing forward promises to pay the debt after the death of the husband. But they cannot have any effect; for they could not add any efficacy to the judgment, as one against her, and, as engagements to pay the debt of the husband, they were without consideration, and also void, because they were not in writing. The Court holds therefore, that the order dismissing the certiorari is erroneous, and that the party ought to be allowed to plead to the merits, and have a trial in the Superior Court.

Per Curiam.

Judgment accordingly.