The learned counsel for the respondents concede the correctness of the rule, that issues in abatement must be tried before issues in bar; and therefore admit the error of the court below in referring the issue in abatement.

They contend, however, that the error is immaterial, coming within sec. 40, ch. 125, R. S. 1858, and should be disregarded. But the court cannot see that the error does not affect a substantial right of the appellants. If they were entitled to *375judgment of discontinuance, it is surely a violation of substantial right that the action proceeded to judgment against them. There has been no trial of the plea in abatement; and until it be tried, it is impossible to determine its merits. The learned counsel also contend, that the judgment on this appeal affirms the power of boards of supervisors to extend the time of payment of admitted liabilities of their debtors. No such question was considered or involved in the judgment. The judgment affirms only the obligation of a plaintiff to discontinue a suit which he has agreed to discontinue.

By the Gourb. — The motion is overruled.