Owens v. Sherits

It was agreed that the cause should lie over until another judge attended.

agreed in principle with the argument of the defendant's counsel, that appearance waived all the irregularities which had taken place;² and was of opinion that the judgment should be affirmed.

² Barnes, 424; 1 Hay. 406; 1 Bos. Pull. 250; 2 Wils.; 3 Hen. Mun. 309; 1 Crompt. P. 100.

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 protunc, was also erroneous.

5th. The judgment purports to have been given after the trial of an issue of fact, where none appears. 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.¹ In this case the defendant should have demurred for duplicity.

¹ 2 Bac. Ab. tit. Error, G. ib. I. 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.¹ The twenty-third 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, *Page 485 allowing time to plead, to be set aside, and a pro confesso nunc protunc; the record further states, that a jury was immediately impanelled to try an issue of fact, and that the jury assessed damages to the sum mentioned, for which the Court gave judgment; this is a complete view of the subject. The substance of the Act of Assembly and principles of justice have been complied with.

¹ Bac. Ab. tit. Error, I. ib. H.