The opinion of the Court was delivered by

The law, in regard to the amendment of pleadings, is, with us, derived from three sources: the common law, the act of assembly of the 21 si of March 1806, and the British statutes enacted prior to the Declaration of Independence. Formerly the whole doctrine of the common law on this subject was in force; but the act of assembly of March 21st, 1806 covers the same ground, so far as respects informalities affecting the merits of a cause (Franklin v. Mackey, 16 Serg. & Rawle 117 ; Diehl v. M’Glue, 2 Rawle 337), from its institution to the rendition of the verdict (Wilson v. Hamilton, 4 Serg. & Rawle 240; Farmer’s and Mechanic’s Bank v. Israel, 6 Serg. & Rawle 294 ; Sweigart v. Lowmarter, 14 Serg. & Rawle 202); and therefore, according to the provisions of the thirteenth section of this act, the common law is superseded to that extent. Wike v. Lightner, 1 Rawle 290. Amendments may, however, still be made at common law, after verdict, not merely while the proceedings are in paper, as in Benner v. Frey, 1 Binn. 366 ; Bailey v. Musgrave, 2 Serg. & Rawle 219; biff even after judgment has been signed, and a writ of error has been biought. Spackman v. Byers, 6 Serg. & Rawle 385 ; Ordroneaux v. Prady, Ibid. 510.

The present application is to be governed entirely by the act of assembly ; and our decision, whether to grant or refuse it, will be subject *45to revision by the supreme court. Diehl v. M’Glue, 2 Rawle 337. The opinion of that court, even on matters purely discretionary, with us, must always have the greatest weight ; but wherever a writ of error lies, we follow implicitly what we believe to be the existing law there. In Wilson v. Hamilton, 4 Serg. & Rawle 240, it was decided that coverture could not be pleaded after a plea in bar, unless the coverture took place after the plea in bar was filed ; and in Garvin v. Dawson, 13 Serg. & Rawle 246, it was held that a former judgment, for the same cause of action, might be pleaded, notwithstanding the issue had been made up, and the case was then on trial. Both these decisions having been made in reference to the act of assembly, and being on the very points before us, the plea of coverture is disallowed, and that of a former recovery received.

The plaintiff’s counsel relied upon two objections to the reception of the plea of coverture. 1. That a nolle prosequi had been entered, as to Mrs Macquart, upon the authority of Beidman v. Vanderslice, 2 Rawle 334; Minor v. The Bank of Alexandria, 1 Peters’s S. C. Rep. 46 ; Hartness v. Thompson, 5 Johns. Rep. 160. 2. That coverture is a personal privilege, and pleadable only by the feme herself, and not by a co-defendant. The case of Wilson v. Hamilton being, however, a sufficient warrant for rejecting this plea on distinct grounds, it is deemed unnecessary to examine the force and relevancy of these views. Engle v. Nelson, 1 Penns. Rep. 442; and Witmer v. Schlatter, 15 Serg. & Rawle 150, cited by the plaintiff’s counsel, fully confirm Wilson v. Hamilton, upon the general doctrine on which the latter case properly rests.

Against the reception of the plea of former recovery, it has been urged that the former lodgment was taken by default, and was merely interlocutory, and that the action itself had been discontinued before the present plea was offered. 2 Archb. Frac. 208, Was cited as authority for such discontinuance; final judgment not having been rendered. This subject will be more fitly investigated upon a replication of nul tiel record by the plaintiff, and no opinion upon it is intimated now.

Rule absolute, as to plea of former recovery.