
    Ingles vs Hume, for Dickson & Co.
    Error to the Pendleton Circuit.
    Debt.
    
      Case 11.
    Suit in the name of Hume, for the use and benefit ofJ. N. Dickson &Co. Plea that J. N. D. &Co. are non-residents, is not good. On demurrers H. is the plaintiff, and responsible for the costs.
    
      Demurrer. Surety for cost.
    
    
      September 10.
    
      Morehead rf- Reed for plaintiff:, Cates cf' Lindsey for defendant.
   Judge Ewing

delivered the opinion of the Court.

Pleas in abatement that L. Dickson was a partner of J. N. Dickson •& Co., and that J. N. Dickson & Co. were non-residents of the State, are both bad, and the demurrer to each should have been sustained. Hume was the legal party plaintiff to the suit, and is liable for costs, and is not averred to be anon-resident. It matters not where Dickson & Co. resides, or whether the names of one or all are set out. The law does not look to them as 'legal parties prosecuting the suit, but to Hume in whose name the suit is instituted. Hume, for his own indemnity, if the suit was instituted in his name by the cestui que use, might, in a proper case made out, by motion and rule of Court, require them to indemnify him upon pain of having the suit dismissed. But the defendant- having been a resident, responsible for costs, has no right to complain. Though it has been determined by this Court, that when the legal plaintiff is a non-resident, and the cestui que use, who instituted the suit, a resident and good for the costs, the Court will not sustain a plea in abatement, by reason of the technical character of the defence, yet it does not follow that if the legal plaintiff is a resident, and directly subject to the costs, that the failure of the non-resident cestui que use to execute bond for costs, may be pleaded in abatement, though he instituted the suit. Though the demurrers to the pleas were improperly overruled and withdrawn, and replications to the pleas filed, the demurrers to the replications reached back to the pleas, and were properly overruled by means of the badness of the pleas, as well as the sufficiency of the replication.

Judgment affirmed with costs and damages.  