
    Jackson ex dem. Butler and others, against Ditz.
    
    On affidavit of the tenant in ejectment, that one of the lessors of the plaintiff was dead, at the commencement of the suit, the demises from such lessor were ordered to be struck out of the declaration.
    Hoffman, (attorney general,) for the defendant,
    on an affidavit that Butler, one of the lessors of the plaintiff, was dead, when the suit was commenced, moved, previous to entering into the consent rule, that the first and second count in the declaration, in which demises were laid from Butler, should be struck out.
    
      Riggs, contra.
    
      
      o) S. C., C. C. 102.
    
   Per Curiam.

The evidence of the death of Butler is sufficient, prima facie to put the burden of proof upon the plaintiff, to show that he is alive, and as he has not done so, we are of opinion, that the demises by Butler should be struck out of the declaration. Both the time and manner of the application are proper.

Rule granted. 
      
       The defendant may at any time move to have the demise of a lessor, who died before the commencement of the action struck out of the declaration without costs. Jackson v. Reynolds, 1 Caines’ R. 20. Jackson v. Banckroft, 3 Johns. R. 259. Elliott v. Bohannon, 5 Monroe, 23. Doe ex. dem. Manston v. Butler, 3 Weiid. 153, per Sutherland, J. See v. Greenlee, 6 Munf. R. 303. But see Kinney v. Beverley, 1 Hen. & Munf. 531. Tillinghast’s Adams on Ejectment, Hogan’s ed. 320.
     