Taylor's Lessee v. Wells

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.