Ditz v. Butler — 1 Cole. & Cai. Cas. 105

Majority

p. 105

Ditz ads. Butler and other.

Headnote

THE Attorney General, on affidavit that Butler, one of the lessors of the plaintiff, is dead, and was so when the suit was instituted, now moves, previous to joining in the consent rule, to have the first and second count, in which he is averred to be the lessor, struck out of the declaration.

Riggs, contra.

It does not appear Certainly that this Butler, who is alleged to be dead, and the lessor of the plaintiff, are the same person; but were it so, yet he may have been competent to demise before his death,

Harisoni in reply.

If the plaintiff will not produce his lessor, or give some account of him, the court ought to lay their hands on the cause, The lessor being Vlead, no one is answerable for costs, Besides, this is a mode of trying a title against a maiVs will, or trying the title of a dead man.

Here is evidence sufficient to cast the burden of proof upon the plaintiff to show that his lessor is alive, and as he has not done so, we are all of opinion the demises by Butler be struck out. We are further of opinion, that this is the proper time and manner of making the application.