Costigan v. Wood

The Court

contrd,) gave the instruction.

The plaintiff then gave such a notice, and had*a verdict in his favor.

Mr. Bradley, for the defendant, cited Jackson v. Rowan, 9 Johns. 330; Jackson v. Wheeler, 6 Johns. 272; Shepard v. De Bernales, 13 East, 565.

Mr. R. J. Brent, for the plaintiff, cited Smith v. Stewart, 6 Johns. 45; 1 Saund. on Pleading, 565.

In the cases cited from 9 Johnson, 330, and 13 East, 565, the defendant was lawfully in possession and in no default; so also in the case of Jackson v. Wheeler, 6 Johns. 272. See Smith v. Stewart, 6 Johns. 46, and the cases cited in the margin of that ease, 3d edition.