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.
*469In 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. *