| N.Y. Sup. Ct. | May 15, 1814
The declaration is against the defendants as heirs and devisees of Tremper generally, and the defendants have pleaded riens per descent. With respect to all the defendants, except John Story, it was proved that they were heirs or devisees ; but he neither inherited, nor took any thing by devise, from Tremper. His wife was a daughter of Tremper, but had, together with her husband, conveyed her proportion of his real estate to a third person, who afterwards conveyed it back to Story. It cannot be pretended that Story is either an heir or devisee of Tremper, and he cannot be charged as such. (2 Saund. 7. note 4.) The declaration is in the dehet and detinst. This action is, therefore, to be classed among those arising ex contractu; and, by the settled principles-of law, the plaintiffs were bound to prove a joint liability on the part of all the defendants ; and not having done so, they ought to have been non-suited. (1 Chitty's Pl. 31. note n.)
Judgment of nonsuit,
Jenks*s Case, Cro. Car. 151. 1 East, 52. 1 Lev. 68. 1 Esp, Rep. 368. Bull. N. P. 129. 1 H. Bl, 37. 2 Chitty, 272, 273,