Majority
p. 102Ditz ads. Butler and others.
Headnote
EjeBment, r g ''HE Ait. Gen. on affidavit that Butler one of the leffors of the plaintiff is dead, and was fo when the fuit was inftituted, now moves, previous to joining in the confent rule, to have the firít and fecond count, in which he is averred to be the leffor, ftruck out of the declaration.Riggs contra. It does not appear certainly that this Butler who is alledged to be dead, and the lef-for of the plaintiff, are the fame perfon; but were it fo, yet he may have been competent to demife before his death.
Harrifon in reply. If the plaintiff will not produce his leffor, or give fome account of him, the Court ought to lay their hands on the caufe. The leffor being dead no one is anfwerable for coils. Befides, this is a mode of trying a title againít a “ man's will, or trying the title of a dead man.
Here is evidence fufficient to call the burden of proof upon the plaintiff to ihew that his leffor is alive, and as he has not done fo, we are all of opinion the demifes by Butler be ftruck out. We are further of opinion that this is the proper time and manner of making the application.