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V. Entry-when not necessary.
6. An actual entry not necessary in any case except to ar a fine.

Jackson, er dem. Bronk v. Crysler, 436. See vol. 1, p. 125.

VI. Evidence in.

1. For Plaintiff.

a. Agreement for lease.
7. A verbal agreement to take a lease from the lessors not carried into exe-
cution, is not sufficient evidence of seisin.

Jackson, ez dem. Southampton v. Cooley, 492.

6. Acknowledgment of Defendant that land belonged to Lessor.
8. The written acknowledgment of the defendant that the land belonged to

lessor, is prima facie evidence of a right to recover; but such acknowledg-
ment may be explained, &c., by defendant, and shown to be founded in

mistake. Jackson, ez dem. Viely g. Clark v. Cuerden, 519.
See vol. 2, p. 353, 355, n. (a.)

2. For Defendantunaccepted request to be considered a tenant.
9. An offer or request to be considered, the tenant of the lessor not accepted

or answered, does not create a tenancy, or the relation of landlord and
.tenant, the defendant then and before holding under a differ-nt right.

Jackson, er dem. Viely g. Clark v. Cuerden, 519.
See vol. 2, p. 353, 355, n. (a.)

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10. In ejectment there can be no judgment by default against the tenant ;
it must be against the casual ejector.

Van Alen v. Vischer, 463. See vol. 2, p. 106.
11. Where a landlord, in 1786, brought an action of ejectment against his ten-

ant, holding under a lease containing a clause of re-entry for non-payment
of rent, and recovered judgment against the casual ejector, by default, un-
der the statute, and possession was thereupon delivered to the landlord,
who executed a lease and gave possession to another person ; and the ten-
ant under the first lease, asterwards brought an action of ejectment, in

1790, for the same premises, against the tenant under the second lease, it
was held, that the judgment by default was, prima facie, regular, and a
sufficient bar; and that the defendant was not obliged to show an affidavit,
or any of the prerequisites to a recovery, required by the statute. (Sess.

24, c. 36, s. 23.) Jackson, ex dem. Smith and others v. Wilson, 295, 566.
Cases and authorities, 297, n. (a.)

X. New Trial.

12. The plaintiff upon the evidence was entitled to a muiety only undivided,

but a general verdict was taken ; a motiou to set it aside on that ground
was refused, and the plaintiff ordered to take possession of the moiety only

on the hab. fac. poss. Jackson, dem Moore Van Bergen, 426.
See vol. 1, p. 101.

XI. Practice-Default.

13. In ejectment the consent rule, new parr., common bail and plea, are

simultaneous acts, and if no plea be given, a default may be entered against
the casual ejector instanter, under the first rule. No new rule is requisite.

Woodward v. Quackenboss, 470. See vol. 2, p. 110.

XII. Recovery.
See Supra, II.

XIII. Vacant possession.

14. Unsettled lands cannot be proceeded against as for a vacant possession.

Saltonstal v. White, 443. See vol. 1, p. 221.

XIV. Verdict.

See Supra, X., New Trial.

ENTRY

1. Adverse not presumed.
II. Entry into part of a Tract.

I. Adverse not presumed.

1. Where the legal possession of lands was in the heirs of A. under a claim

of title, and a descent in 1752, and B. afterwards entered on the land, and
made improvement, and his possession was continued for 37 years ; but it
did not appear that he entered under claim or color of title, or hostile to
the heirs of A., whose title was not disputed until after 1783, it was held

that the legal intendment was, that B. entered under the title of the heirs
of A., and that the statute of limitations could not begin to run, till after

the possession of the defendant was held adversely to the heirs of A.
An entry adverse to the lawsul possessor is not to be presumed, but must be

proved. Jackson, er dem. Gansevoort v. Parker, 124–2.

II. Entry into part of a Tract.
2. A tract of land was granted, by letters patent, to A. in 1735, which was

surveyed and laid out into lots. In 1736, B. executed leases for several
lots to different persons, for lives, reserving rent, in which he asserted his
claim to the whole tract ; and exercised various acts of ownership, antil
his death, in 1752, and his heirs also gave leases of some of the lots, in
1767, and his title and that of his heirs, continued to be acknowledged by
the tenants, and remained undisputed, until after the year 1783. In an
action of ejectment brought by the heirs of B. against C., who had been
in possession since 1772, it was held that a grant from the original paten-
tees to B. was to be presumed; that entry, by him, into part, with a claim
to the whole, was to be considered as an entry into the whole; and that
the entry of C. was in subordination to the title of B.

Jackson, er dem. Gansevoort v. Lunn, 109.

EQUITY

See CHANCERY.

ERROR.

Plaintiff, administrator, recovered in the common pleas of Ulster, a verdict

under $25, and that court refused to give judgment in his favor for the
costs. Motion for a mandamus denied ; a writ of error is the proper rem-
edy. Jansen v. Davison, 480. See vol. 2, p. 72, 73, n. (a), 217, n. (6.)

See MANDAMUS. PRACTICE.

ESCAPE.

In an action against a sheriff for an escape, if it be averred, or found on the

record, that the sheriff permitted the prisoner to escape, it is equivalent to

a finding of a voluntary escape.
The prohibition in the 10th section of the first article of the constitution of

the United States, does not extend to the municipal regulations of the pres-
ent states, which modify the process and proceedings relative to the recor-

ery of debts, as establishing jail liberties, fc.
The act, (sess. 24, c. 91,) as to jail liberties, is imperative on the sheriff, who

is bound to grant the liberties to the prisoner on his tendering a sufficient
bond ; but as this bond is intended only for the sheriff's indemnity, he may

waive it, and grant the liberties, without taking the bond; and he will not
therefore, be liable for an escape. Holmes v. Lansing, 73.

See SHERIFF. JAIL LIBERTIES.

ESTATE.
See ALIEN. DEVISE. CONDITION.

ESTOPPEL.

I. By Record.
II. By Deed or will.
III. In pais.

I. By Record.
1. A foreign sentence of an admiralty court is conclusive between the assurer
and the assured.-(Reversed in error, in a like case.

Ludlows y. Dale, 426. See vol. 1, p. 16.
See Goiz v. Knox, vol. 1, p. 337, 16, n. (a), and 341, n. (c.)

II. By Deed or will.
2. By the common law, a conveyance of land by a person against whom

there is an adverse possession at the time, to a third porson, is void ; but
the title of the grantor is not thereby extinguished or divested; nor will
such conveyance enure, by way of estoppel, for the benefit of the defend-

ant in possession.
No person can be technically estopped by a conveyance under the statute of

uses. Jackson, er dem. Jones v. Brinckerhoff, 101.
3. A. by his last will and testament, among other things, devised as follows:

“ And whereas I have conveyed to my son C., my lands at C., and to my
son D. my lands at F. I give and devise all my remaining lands and teno-
ments, and real estate whatsoever, to my sons C. and D. and my daugh-

ter," &c.
It was held that the recital in the will was evidence of a conveyance of the

farm in F. to D. and that C. as heir of the testator, was estopped by the
recital, to deny that the farm was conveyed to D. and that the necessary
intendment from the language of the clause in the will, was, that it was a

conveyance in fee to D. Denn, ex dem. Colden v. Cornell, 174.
Cases and authorities, 178, 178–5.
4. Cases and authorities upon estoppel by recital, 178, n. (6.)

III. In pais.

5. A stranger or third person cannot avail himself of an estoppel by a mere

writing or matter in pais. Jackson, ez dem. Jones v. Brinckerhoff, 101.
Authorities upon the doctrine of estoppel in pais, 103, n. (a.) See Faugier

v. Hallett, vol. 2, p. 233.
Vol. III.

94

EVIDENCE.

1. Admission.
II. Admiralty survey.
III. Adultery.
IV. Ancient Deed.

V. Attainder.
VI. Bills of Exchange, goc.
VII. Bond.
VIII. Breach of Promise.
IX. Debt.

X. Declarations.
XI. Deed.
XII. Demurrer to.
XIII. Deposition de bene esse.
XIV. Ejectment.

XV. Forgery.
XVI. Judgments, Decrees and Sentences.
XVII. Pardon.
XVIII. Parol Evidence to vary terms of written paper.
XIX. Presumption.

1. Corroborating circumstances.
2. Of Indebtedness.
3. Of Grant.

4. Of Disabilities.
XX. Private Acts.
XXI. Receipt.
XXII. Record.

1. Attestation of from another State.

2. Of Will.
XXIII. Resulting trust.
XXIV. Statute.
XXV. Witness.

1. Attachment against.
2. Competency.
a. General rule as to incompetency, arising from in-

terest.
b. Of Witness, or wife of Witness, to devise.
c. Owner for master, in Master v. Shipper.
d. Grantor for Grantee, at the suit of third person in

Trespass.

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