
    Hargis vs. Ayres.
    A plea in abatement cannot be filed after the return term of the writ without leave of the court ■ - v
    A demurrer to a plea in abatement, is a waiver of the objection, that the paity filing the plea had not obtained leave from the court to file it.
    A plea commencing in bar, and concluding in abatement, is to be considered a plea in bar; and if it contain no sufficienqmatter itr'bar, may be demurrred to as a plea in bar.
    When a party defendant pleads the death ofthe plaintiff to the action, and the plea is stricken out after a demurrer filed "thereto, on the motion of the plaintiff, it cannot be considered and taken ás a suggestion of the plaintiff’s death,which is admitted, so as to abate the suit.'
    Persons for whose use a ánit is brought in,the name of another, are only to be considered the real plaintiffs, so as to subject them to the payment of the costs.
    This was an action of debt. The declaration is in the common form. At the second term the defendant filed the following plea: “The defendant, in his own proper person, comes and defends the wrong and injury, when, &c.; and says, that before and at the time of the issuance of the writ, and filing the declaration in this cause, the said David B. Ayres, and Jonathan Ayres, who are the plaintiffs in this cause, or whose names are used as such for the use of Chunn, Gillespie, & Co., as in the writ and declaration mentioned, departed this life intestate, leaving personal representatives; and the said defendant says, that the plaintiffs ought not to have and maintain their action, as "by their said writ, and declaration thereon founded, is supposed, and the said suit should have been brought in the name of the personal representatives of the said David B. and Jonathan Ayres, who are the payees in the said writing obligatory, set foythin the declaration,-and this the defendant verifies, wherefore he prays judgment of the said declaration and writ, and that the same be quashed.” Sworn to in common form. To this plea the defendant demurred; and on the same day of the same term, the plea, on motion, was stricken out, and judgment rendered for thg plaintiff. The defendant appealed in the nature of a writ of error to the circuit court, where the judgment of the county oourt was affirmed, and from this judgment of affirmance, the defendant prosecuted a writ of error to this court.
    
      James Campbell, for plaintiff in error.
    /S. Turney, for defendants in error.
   Peck, J.

delivered the opinion of the court.

Can the defence set up he noticed as a plea? From the date of the affidavit, it appears to have been filed at a term subsequent to the return term of the writ. Pleas in abatement being dilatory, are in general only pleadable by leave of the court, but the grant of leave so to plead may be waived by the opposite party. The demurrer being filed to the plea may he taken as such waiver. As a plea in abatement, the present plea is vicious, commencing in bar and concluding in abatement. This from the form of it, makes the plea in bar and not in abatement, and containing no sufficient matter in bar, was demurrable as a plea in bar.

It is, however, argued, that it may stand as a suggestion of the death of the plaintiffs, and if the death appear of record, the cause abates of course. But the truth of, the suggestion is not admitted in the record, for the plea which contains the suggestion has been stricken out.

This brings us to the question, whether we are to treat the beneficiary as the real plaintiffs, or the said David B. and Jonathan Ayres. This question was determined at Nashville, March term, 1835, in the case of Smith for Anderson’s use vs. Broder (7 Yerger’s Rep.), where we held them to be the plaintiffs, and the beneficiary, only plaintiff so far as to subject' him to the payment of costs, if the plaintiffs associated with them shall be cast.

In this view of the case, the court should have looked into the truth of the fact suggested; not having done so, the judgment must be reversed, and the cause remanded to the circuit court to he proceeded' in.

Judgment reversed.  