
    Greer's heirs and others vs. Smith and Jones.
    When the name of R. ig used as a joint lessor in an action of ejectment, without authority by others having an interest in the land, who are plaintiffs, the suit will not be dismissed under the acts of 1S25, ch. 29, and 1825, ch. 68, hut the name of such lessor will be stricken out.
    When the probate of a deed was in these words, “State of North Carolina, I, Isaac Alexander, clerk of the court of pleas and quarter sessions of Mecklenburg, at the court house in Charlotte, on the 4th Monday in February, in the year 1817, do hereby certify, that William Irwin, one of the subscribing witnesses to this deed, appeared in court and made oath that the said Robert Irwin signed, sealed, and delivered the within deed for the uses and purposes therein mentioned. In testimony whereof, &c Held, that this was a sufficient probate of the deed as to the witness mentioned in the certificate.
    This was am action of ejectment, brought by William M. Greer and others, as lessors, against Smith and Jones. The declaration lays the demises in the name of Robert Irwin, jr. jointly with the others. The defendants filed an affidavit, alleging that Robert Irwin, whose name was used in said action, was dead at the time the action wTas commenced, and had given no authority to the plaintiff to use his name; and having proved the fact, that said Irwin was dead when the suit was commenced, moved the court to dismiss the suit, but this the court refused to do, and ordered the name of said Irwin to be stricken out, and the cause to be continued in the name of the others. The defendants then pleaded not guilty. On the trial, the plaintiffs proved that the defendants were in possession of the land mentioned in the declaration, at and previous to the commencement of the suit. They then read a grant to Robert Irwin and Zenas Alexander, covering the land in controversy. They then proved that the lessors of the plaintiff, were the heirs of Zenas Alexander and Thomas Greer, and then offered in evidence a deed, dated the 13th of April, 1813,. from Robert Irwin to Thomas Greer, for a part of the land in dispute. The deed was proved by one of the subscribing witnesses in Maury county, who also proved the death of one other of the witnesses, and that he had subscribed the deed as a witness, all of which was properly and legally done. The probate of the other subscribing witness was in these words: “State of North Carolina, I, Isaac Alexander, clerk of the court of-pleas and quarter sessions, of Meck-lenburgh, at the court house in Charlotte, on the 4th Monday in February, in the year 1817, do hereby certify, that William Irwin, one of the subscribing witnesses to this deed, appeared in court and made oath that said Robert Irwin, signed, sealed, and delivered the within deed for the uses and purposes therein mentioned. In testimony whereof, &c.” To the reading of this deed so proved, the defendants objected, which objection was sustained by the court, and the deed rejected; to which opinion of the court in rejecting said deed, the plaintiffs excepted. The jury, under the charge of the court, which is not set out, returned a verdict in favor of the defendants. The plaintiffs having moved for a new trial, and it being refused them, prosecuted an appeal in the nature of a writ of error to this court.
    Cobbs, for the plaintiffs in error.
    Pillow, for the defendants in error.
   Peck J.

delivered the opinion of the court.

Two questions arise upon this record. 1st. Should the court have dismissed the cause for the want of authority to lay the demise jointly with the other plaintiffs, in the name of Robert Irwin, who was dead; we are of opinion the court did right in striking out the name of the dead man, Irwin, and permitting the cause to proceed in the name of the other lessors, who were plaintiffs, without Irwin, competent to bring the action; and it would be a forced construction of the acts of assembly beyond their obvious meaning, to dismiss for the want of authority to associate the name of him who could give no authority, with others, the authority for the use of whose names is not questioned, (act 1825, ch. 29: also, same year, ch. 68.

2d question: did the court err in rejecting the deed of conveyance from Robert Irwin to Thomas Greer, dated 13th of April, 1813. The probate objected to is in these words: State of North Carolina, I, Isaac Alexander, clerk of the court of pleas and quarter sessions of Mecklenburgh, at the court house in Charlotte, on the 4th Monday in February, in the year T817, do hereby certify, that William Irwin, one of the 'subscribing witnesses to this deed, appeared in court and made oath that the said Robert Irwin signed, sealed, and delivered the within deed for the uses and purposes therein mentioned. In testimony whereof, &c. On the authority of the case of Crawford and Crawford vs. Henderson and another, determined at the present term of this court, the certificate is sufficient. In rejecting the deed, the court erred, for which the judgment must be reversed.

judgment reversed.  