It is well settled that a tenant must first restore his landlord’s possession, before he can set up an outstanding title to property . occupied as a tenant. The case in 3 Peters, 44, creates an exception to this rule ; but the case on trial is not within that exception. In that case, there had been a disclaimer of the landlord’s title, and an adverse possession. The right to sell by the representative of the personalty, is not an adverse title to that of the intestate, but the same title. The testimony is excluded.

Verdict for the plaintiff.

Motion for a new trial overruled.