person not tenant in possession, or defendant on record, does not make him a party to the suit in contemplation of law, so as to conclude his rights.
Fourth exception.In considering the fourth and fifth exceptions, it is necessary to advert to the fact, that the plaintiffs in this action originally were Anthony Taurin Chirac, Mathew Chapus and Anna Maria his wife, Mathew Thevenon and Maria his wife, and Maria Bonfils, the same persons having been plaintiffs in the ejectment. During the pendency of the suit the plaintiffs obtained leave to amend their declaration, and did amend it, by introducing the name of John B. E. Bitarde Desportes, as husband of the said Maria, called, at the commencement of this suit, Maria Bonfils. To this amendment no objection was taken, and the defendant pleaded to the declaration, so amended, the general issue. The evidence of title of John B. Chirac, deceased, being introduced, and, also, evidence to prove that Anthony T. Chirac and the female plaintiffs were heirs at law of John B. Chirac, the defendant then prayed the Court to direct the jury, “that they ought to find a verdict for the defendant, unless they are satisfied that all the plaintiffs are the proper heirs at law of the aforesaid John B. Chirac,” which direction the Court accordingly gave. The probable intention of the defendant was to pray an instruction to the jury, that unless all those of the plaintiffs who claimed to be heirs of John B. Chirac, should establish their title, the suit could not be maintained. In this view, the opinion of
