December Term, 1861
John K. Porter, for the appellant.
Martin J. Townsend, for the respondents.
I do not see that there was any error committed in setting aside the judgment in this case, which this court can review. I do not understand that a personal judgment can be entered against a feme covert by confession. There are good reasons why this cannot be done. In the first place the common law courts in England and this country do not allow a judgment in personam to be given against a feme covert. It has been so long and well settled, that such a judgment could not be rendered against her, that it has been held erroneous, and such judgments invariably have been set aside on motion. (2 Grah. Pr., 772, 2d ed.; Brittin v. J.M. Wilder and Mary Wilder, 6 Hill, 242; 3 Taunt. R., 261.) There is nothing in the present Code that removes the disabilities which the common law has thrown around a married woman in this respect, and she can no more confess a valid judgment in personam than an infant. She was always placed on the same footing in this respect as an infant. This judgment was clearly erroneous against the wife, and was properly set aside as to her; and it seems to me it was entirely discretionary with the court below, whether they would amend the record which had already been filed, and allow the judgment to stand against the husband, or whether they would set it aside entirely. (6 Hill, 242.) It involved a mere question of practice, which this court cannot review (2 Comst., 186), but as my brethren are of opinion that the judgment against the husband was right, and that the court should not have set it aside as to him, the order is affirmed as to the wife, and reversed as to the husband.
All the judges concurring,