p. 384TAYLOR’S LESSEE v. WELLS et al.United States Circuit Court. Delaware District.
p. 385Wilson, [Associate] Justice [of United States] Supreme Court, Bedford, District Judge.Levy for plaintiff. Bayard for defendant.
The plaintiff then showed the will of his father dated August 16, 1766, by which the premises were devised to him and which was proved on March 10, 1772.The counsel for the defendants moved for a nonsuit on the ground that no title was shown in the plaintiff’s lessor at the time of the demise.
Plaintiff’s counsel answered that the will was dated before the demise, though the date of the probate was after, and the party might be presumed dead before the time of demise. At all events he insisted that by the Act of Congress, as well as by law independent of the Act, the fault was amendable.The demise is not amendable. The plaintiff has declared according to one title which he has failed in making out, and he would now amend so as to suit the declaration to another title. There is no fault or mistake in the declaration and nothing therefore to amend. The plaintiff certainly shows no title at the time of the demise. The will is dated before the demise, but the probate long after. The law in this case would presume the father living at the time of the demise, for he is shown to be living a short time before, and no ground is after-wards shown to presume his death. As no title is therefore shown at the time of the demise the plaintiff has unquestionably failed in maintaining his suit.
Upon this opinion the plaintiff suffered a nonsuit.