
    
      BLAIR’S HEIRS vs. WADE’S
    
    If heirshipbe denied, proof of it cannot be dispensed with.
    Appeal from the third district, the judge of the fourth presiding.
    This suit was originally brought by Blair, against Wade, and at the April term of 1825, judgment was rendered in favor of plaintiff for the amount claimed. The defendant applied for, and obtained a new trial. The death of the defendant was suggested, November term fol- . , , . lowing, and leave granted to make his representatives parties to the suit. At April term, 1826, death of the plaintiff was suggested and his heirs made parties. The defendants pleaded de novo, admitting in their answer the death of Blair, but denying expressly the heirship of plaintiffs. No proof was offered of heirship. There was judgment for plaintiffs and the defendants appealed.
    
      Watts, for the appellants.
    The heirship of the plaintiffs was expressly put in issue. No proof of it was adduced, and plaintiffs ought to have been nonsuited, or judgment given for defendants.
   Mathews, J.

delivered the opinion of the court. This suit was originally instituted by the ancestor of the plaintiffs against the ancestor of the defendants. The death of the latter was suggested and permission granted to make his representatives defendants. After this it seems that the plaintiff died, and on motion to that effect, the suit was revived in the name of his heirs — and in this mode it was proceeded in, to final judgment in favor of the plaintiffs, from which the defendants appealed.

If heirship bo denied, proof of it cannot be dis-penned with.

After the revival of the action, the defendants pleaded de novo; and, in their answer, denied, in express terms, the capacity and quality of the plaintiffs named as heirs. On the trial of the cause, no evidence was offered to prove their heirship. In this court, their counsel relies on the order of the court below, by which they were permitted to prosecute the suit, in the capacity assumed, as a dispensation of any further proof of it. This ground of defence, on the appeal, we believe to be untenable. An order, similar to that now in question, is generally made ex parte, on the mere suggestion of the party interested to obtain it, unsupported by any evidence. The answer r ‘ J J explicitly required proof of heirship on the . 1 J * 1 part of the appellees, and as they failed to make it, the judgment of the district court must be reversed.

It is therefore ordered, &c. that the judgment of the court below be avoided, reversed and annulled. And proceeding here to give such judgment as in our opinion ought there to have been given. It is further ordered, &e. that judgment as in case of non-suit be entered against the plaintiffs and ap-pejjeeg wJ^]j costs ¡n both courts.  