
    William Trask versus Robert Stone.
    To an action by an infant plaintiff, who sued by A, B, his next friend, the defendant pleaded in abatement that the plaintiff’s mother was living, and that the suit ought to have been prosecuted by her, as guardian by nature, &c. The plea was held ill, it not being matter in abatement; but if material, it was ground for a motion to stay proceedings.
    The plaintiff was an infant under the age of eight years, and sued this action, “ by Niles Tilden, of, &c., the next friend of the said William, who is admitted by the Court here to prosecute for the said William, in a plea of trespass,” &c.
    The defendant pleaded in abatement, admitting the infancy, but averring that Mary Trash, of, &c., is the mother-and surviving parent of the said William, and the guardian by nature and nurture of the said William; and that the suit ought to have been prosecuted by her, as guardian of the said William, as aforesaid, and not by the said Niles Tilden, as the next friend of the said William, &c.; wherefore, &c.
    To this plea there was a demurrer and joinder.
    
      Putnam for the plaintiff.
    
      Story for the defendant.
   Curia.

This is no cause for abating the writ. If there was ground for the objection, there should have been a motion tc stay proceedings.

Respondeos ouster.  