
    Charles J. Humphreys and Howes H. Coleman, Administrators of Perry W. Humphreys vs. David Irvine, use of John R. Fentress.
    Our statute directs that the death of the nominal plaintiff, during the pendency of a suit, shall not cause its abatement; but it does not authorize the commencement of a suit in the name of a person no longer in existence.
    It is erroneous to exclude evidence that the nominal plaintiff died before the suit was instituted ; for if it be shown to the satisfaction of the court that the nominal plaintiff was dead at the time the suit was commenced, the effect must, be an abatement of the suit.
    Error from the circuit court of De Soto county; Hon. James M. Howrey, judge.
    This was an action of debt, on a writing obligatory, brought by David Irvine, for the' use of John R. Fentress, against Charles J. Humphreys and Howes H. Coleman, administrators of Perry W. Humphreys. The defendants filed a plea of payment, upon which issue was taken. On the trial the defendants offered to prove that David Irvine was dead at the time of the commencement of the suit; the plaintiff’s counsel objected to the evidence, and the court sustained the objection, and excluded it from the jury, on the ground that the character of the parties suing could not be denied, except by plea under oath. To which opinion of the court the defendants excepted. The defendants, after a verdict and judgment in favor of the plaintiff, entered a motion for a new trial, which was overruled by the court, and they again excepted, and have now brought the-case to this court, by writ of error.
    
      D. C. Glenn, for appellant.
    The rule of law, as stated, that no evidence going to dispute the character, or identity of the party suing, except by way of plea in abatement, verified under oath, can be used, is admitted. In this case we do not seek to do so. We asked to be permitted, under the general issue, to show that the party whose name is used by the usee in this action, has no interest therein. Our proof implies the truth of the character and identity of the party, and upon the truth of that very fact we have our right to make this proof as to his interest, and to let it go to the jury. See 4 T. R. 361; 1 Salk. 114; 1 H. Bl. 108; 3 Black. R. 1236. If the suit had been in the name of Irvine alone, we could not have done so. But suppose we had filed an affidavit denying the interest of the usee and his title to use Irvine’s name, because he was dead, stating the facts, and calling for his authority so to do. Could we not have done it, and would we not thus have reached his interest without a plea in abatement. Surely so. 7 How. 355. We offered to show that Irvine died before the institution of the suit. Such being the case, the right of action in the note went to his administrators or executors, and their names alone could be used in enforcing payment. The interest of Irvine, sought to be used, had, eo nomine, passed to others, and his name could not be used. Upon this record David Irvine is the active party suing. Such a one cannot recover unless he has an interest, and of this interest the jury must be satisfied. 7 How. 355. In this case the court refused a motion to dismiss a cause, for want of proper showing of interest, saying, such an inquiry was proper only for a jury. Ibid. 355. This was all we sought to do. John R. Fentress is the-real party interested in this action; he derives his interest from Irvine. We sought to show that Irvine had no interest, at the commencement of the suit; that he was dead, and his interest as David Irvine extinct, and incapable of being used as simply such, and to leave the matter to the jury alone as proper for such an inquiry. This the court refused, which we assign as error, and pray a reversal.
    
      Van Winkle and Potter, for defendant in error.
    Proof of the death of the nominal plaintiff could not be offered under the plea of payment. By that plea the defendants admitted the existence and title of Irvine. H. & H. 595, sec. 32. The plea of payment was no general issue; the defendants were not privileged, under the statute, to offer such proof under this plea; In a case like this, the administrators were as much bound to plead the matter, as would be any other defendant. Ellis’s Administrators v. Planters Bank, 7 How. 240.
    If defendants could prove such a matter after a plea of payment, it is clear that the proper course was not to show the fact by proof to the jury under such an issue.
    Fentress was the real plaintiff in the suit, the responsible party, liable for costs, &c. It seems frivolous to complain that the defendants were not permitted to prove the death of a party who had no interest in the subject-matter, nor in the event of the suit. Why then, should this judgment be reversed?
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of debt upon a writing obligatory. There are various alleged errors in the proceedings, but it will be sufficient to, notice a single one. During the trial the defendants offered to prove that David Irvine was dead at the time the suit was brought. This evidence was objected to, and rejected by the court, to which a bill of exceptions was filed.

This was erroneous. A judgment for or against a dead man is usually a nullity. Our statute directs that the death of the nominal plaintiff during the pendency of the suit, shall not cause its abatement. H. & H. 584. This constitutes perhaps the only exception. But this cannot be construed to authorize the commencement of a suit, in the name of a person no longer in existence. It matters not at what time the fact of the death of a party is made known to the court; nor in what form. The objection rises above the mere technical rules of pleading, and goes to the right of the court to proceed. It stops the cause at whatever stage it may be, whenever made known to the court.

The exclusion of the testimony was therefore erroneous. If the fact is made out to the satisfaction of the court, the effect must be an abatement of the suit, as it will show it was wrongly brought at its inception.

Judgment reversed, and cause remanded.  