
    Hitchcock, and his wife, who was the wife of Ferris, against Carpenter.
    NEW YORK,
    Oct. 1812.
    In an action of dower, the defendant pleaded, l.JV'e tinque seise, &c. 2 JVe unque decouple, &c. 3 That the husband of the demandant was in life, &c. It was held that the defendant claiming to bold underthe heirs of the husband of the demandant was es-topped from denying his seisin and death; and that the defendant could not, at the tria!, give in evidence, under the pleas, a release of tbe premises to A. executed by the demandant; hut that such release must be pleaded»
    THIS was an action of dower. David Ferris, deceased, the former husband of Rachel, the wife of Hitchcock, was seised, in his lifetime, of lot No. 12. in Queensberry, in Washington county, being the land of which the demandant claimed dower. The defendant pleaded, 1. Ne unque seise que dower, &c. 2. Ne unque accouple, 8rc. 3. That David Ferris is in life, &c. 4. A conveyance by the demandant, of the premises in question in fee to Elijah Bartow; his heirs, &c.
    The cause was tried before Mr. Justice Yates, at the Washington circuit, the 17th June, 1812.
    It was proved that David Ferris lived on the land about 20 years ago ; that he afterwards went to the western country, and it was reported that he was drowned in the Ohio river; that Ferris and the demandant lived together, as man and wife, and that she has since married the plaintiff. It also appeared that the defendant was the tenant in possession of the premises, and claimed to hold under the heirs of David Ferris. The yearly value of the premises was proved.
    The defendant gave in evidence a release of the premises in question, before the commencement of the suit, duly executed by the demandant to Samuel Odell. The plaintiff’s counsel objected to the evidence, cm the ground that it ought to have been 1~leaded, or notice of it given with the general issue. The judge overruled the evidence, and the jury, under his direction, found a verdict for the plaintifTh.
    The defendant moved for a new trial; 1. Because there was not sufficient evidence of the seisin and death of Ferris ; 2. Because the release offered in evidence by the defendant was improperly rejected.
    
      Skinner, for the defendant.
    
      Z. R. Shepherd, contra, cited the case of Hitchcock v. Harrington. (6 Johns. Rep. 290.)
   Per Curiam.

As the defendant claims under the heirs of Ferris, he is estopped from denying the seisin and death of Ferris, the former husband of the demandant. He has affirmed that seisin by taking under the heirs. This was so considered by this court, in the case of Hitchcock v. Harrington. (6 Johns. Rep. 290.)

The release offered in evidence by the defendant was properly . excluded. It ought to have been pleaded. It could not be given in evidence under any of the pleas on which issue was joined. It had no relation to either.

Motion denied.  