#### Den on the demise of Bowden and wife vs. Evans.

"ipHE plaintiff claimed one undivided ninth part of the tract of' -*• land in question, and proved title to, one eighteenth part; only.

Baker, for the defendant,

objected that he cannot recover 3 part only of that which he has claimed in his declaration ;-ar>d' relied upon the case of Young and Drew, decided in this court; by Judge Moore.

Johnston, Judge.

If he is entitled to any part, he shall re-, cover it; and the defendant must be found not guilty for the re-, sidue which he claims and has no title to.

And in this case, Judge Johnston also decided, that it is suf-i ficieut evidence of the death of the ancestor of the lessor of the-plaintiff, that he has been absent seven or eight years, and had not been heard of In that time.

Verdict and judgment accordingly^