
    Fitch v. Lothrop.
    The judgment of the court ought to he, where a plea in abatement is judged not to be true or insufficient, that the defendant answer over to the action.
    Weit op EbboR. Lothrop sued Eitch. before a justice, as executor of Benjamin. Eitch. The defendant plead in abatement — That he is not executor of said Benjamin, nor hath administered as such, but that Joseph Isham, Esq. is administrator on the estate of said Benjamin; upon which the parties were at issue, and the judgment of the justice was, that the defendant was executor, and that the plaintiff recover nine shillings and six pence, debt and cost.
   Error assigned — That the judgment ought to have been a respondeat ouster, and not in chief for damages; and the judgment was reversed for the cause assigned in error.  