Millerd et al. v. Reeves. now settled on sound and satisfactory principles. It is now held that the statute of frauds does not apply to such a case. When the court say a grant or license by parol, when the law requires it to be in writing, is void, they mean that it is void to confer the privilege to the extent intended by the parties, but not that it is void to all intents and purposes. Until the license is countermanded, no action can be maintained, and this countermand must be proved on the trial. In the case of Miller v. Auburn Railroad Co. 6 Hill 64, the court appear to think many of the English and American cases cited above, are not law to the extent stated in them. Judge Cowen says, if they are law, you have only to throw the grant into the form of a parol license, and on its being executed, the statute and common law are evaded. He refers to the case of Hewlins v. Shippman as overruling many English cases; and to 15 Wendell 380; 3 Kent's Com. 451; 6 Wendell 461, 464, as overruling other cases in New York. But the judge still recognizes the rule for which we contend. He says, suppose the right a defendant claims could not be granted by a parol license executed, still the license may operate according to its own nature; and there is no book which teaches that before a license is revoked or has expired, though it be not executed, a man is liable to pay damages for availing himself of it. It does not follow, by any means, that because a license is void for the purpose of conveying an interest irrevocable, it may not enure as a personal authority, and, until revoked, protect a defendant against an action for a wrong. It would be most strange if, because it could not operate as something more than what it professed, it should therefore be held void for its avowed object, and that, too, a perfectly legal one. This review of the cases on this subject, shows that a parol license is sufficient to defeat an action of trespass, or trespass on the case. If, therefore, the defendant had parted with the right (exercised by the plaintiffs) to Dexter, and Dexter gave plaintiffs a license which protects them, as we think it does, the court erred in rejecting the evidence offered by plaintiffs on this point. We do not understand the evidence was rejected because Dexter had no power to grant such a license, but because it was inoperative, not being in writing, and, therefore, as against defendant, no protection, since his right to occupy the land could not be contested by a stranger, supposing defendant to have the fee in the land. Millerd et al. v. Reeves. Dexter never revoked his license, but appears to have acquiesced in the validity of the sale to plaintiffs-at all events, he permitted plaintiffs to flow the land. Defendant in his declaration, alleges his seizin in fee and possession. This is an assertion that the fee was in him. 5 Cruise's Dig. 58, 239. That the title of plaintiff must be proved as laid, see Saund. Pl. and Ev. 687; 2 Saund. R. 113 a, n. 1, 206 a, n. 22, and 207 a, n. 24. This, as a general proposition, is true. There are some cases in which a seizin in plaintiff will be presumed, as when he claims title against a trespasser on lands in possession of plaintiff. But in this case there is no proof that defendant claimed title of any kind. He did not enter, or hold by color of title, and he seeks damages against persons in possession of that portion of the lands in question, by flowing them, and who had so possessed them by flowing them for years before the defendant took possession. The seizin of defendant could not be presumed to a greater extent than his actual possession. If not, there is no injury done to defendant. The action is for damages to that of which the defendant has not, by his own showing, any actual possession, for it is flowed by plaintiffs. Had the defendant a paper title, whether good or bad, if he entered by color of it, plaintiffs might be called upon to show their right beyond a mere possession; but such is not the case here. It is manifest a mere intruder, or occupier cannot claim, as in this case, for an injury to the inheritance, without showing he had an interest in it to be affected by the plaintiffs' acts. A tenant in possession and the reversioner or remainderman may each have his action for the same nuisance at the same time; and, therefore it is, that the particular interest stated, in respect to which the suit is brought, becomes material. Color of title, under a deed and occupancy of part, will be suffi cient proof to constitute an adverse possession to a single lot. 1 Cowen 286. This principle applies only to cases where there is no actual occupancy under a different claim. In Jackson v. Vermylia, 6 Cowen 681, the court say, "if A. takes a conveyance or lease of a whole lot, say 63 acres, and improves part, his possession is valid for the whole lot-not on the ground of having title which draws the possession after it until an actual adverse possession commences; but on the ground of a claim of title to the whole, and a possession of a part, which constitutes a good adverse possession. VOL. I. 15 Millerd et al. v. Reeves. When a valid possession is acquired in the latter mode, it cannot be defeated by a subsequent entry on the same lot, making an improvement of a part and obtaining a title to the whole. The effect of such subsequent entry would be, to give the person so entering possession of the part actually occupied and improved, but no further." Apply these principles to the present case, and without regard to the license from Dexter, and the fact that the defendant had parted with all his right, whatever it was, to prevent or interfere with the flowing of the land in question: plaintiffs enter and occupy the land by flowing it; defendant enters upon another part of the land without color of title-both being equal in the character and extent of their title-he must be confined to that part actually occupied by him. 10 Wendell 639. Upon an examintion of the charge of the judge, and applying to it the principles of law which we have gathered or deduced from the cases I have cited, I am of the opinion that the court erred in rejecting the offered evidence of Mr. Dexter. That the court erred in its instructions to the jury that "proof of occupancy and possession of the premises by defendant during the time in question, would be sufficient to sustain the allegation of seizin." The court erred in refusing to instruct the jury that there was no legal evidence before them that the plaintiff was the owner of the premises mentioned in the pleadings, at the least the part flowed by plaintiffs, as the defendant did not enter into any part of the premises, or hold by color of title, or any claim besides that of a mere occupant. I think the plaintiffs entitled to this instruction in relation to the land flowed at the time defendant entered into possession. The charge of the court assumes that defendant, by entering into the possession of a portion of land and occupying it, had a right to the whole, and that his possession was evidence of his seizin of the whole, and that plaintiffs, failing to show any right to flow the land, were trespassers. But, as I have said, mere occupancy or possession, without color or claim of title, cannot be evidence of seizin, partiularly as against a prior occupant; and without showing title, or a possession under a claim of title, defendant's possession or right by virtue of it, must be restricted to the land he actually occupied. I am therefore of the opinion that the circuit court erred in its instructions to the jury, and that the judgment below must be reversed Whipple v. Williams. and the cause remanded, with instructions to issue a venire facias de novo. Judgment reversed and venire de novo. WHIPPLE v. Williams. An affidavit that is not correctly entitled in a cause, cannot be used therein. A writ of error was sued out in the names of W. and R. On motion, W. was allowed to sever in the prosecution of the suit. Affidavits sudsequently drawn up and entitled in the name of W. and R., were held to be erroneously entitled. Mr. Douglass moved to strike a bill of exceptions from the record. The affidavits he proposed reading in support of his motion, were entitled, "Gardner D. Williams ads. Charles W. Whipple and Theodore Romeyn." Mr. Davidson, on the part of the plaintiff, objected to the reading of the affidavits, as they were not entitled in the cause. 4 Hill 19. It appeared that the writ of error was originally in the names of Whipple and Romeyn, but that on the 3d January, 1844, on motion, Whipple was allowed to sever in the prosecution of the suit, and that the affidavits had been drawn up since that time. By the court. Affidavits must be correctly entitled in the cause in which they are to be used; otherwise an indictment for perjury would not lie upon them, if false. 2 Cowen 509. Notices and other papers are sufficient if they do not mislead. Since the severance there is no, such cause in this court as that in which the affidavits are entitled. Motion denied, Savier e. Chipman. SAVIER V. CHIPMAN. The statute, Ses. L. 1842, p. 135, S. 4, provides, that no justice of the peace shall hold any court, or hear an examination, in any bar-room, grocery, or other room or place where spirituous or intoxicating liquors shall be sold. Where it appeared from the justice's return that, on the day of trial, the cause was called in the bar-room of a tavern and adjourned to an adjoining room in the same house, but that the justice had no knowledge spirituous or intoxicating liquors were sold there, and no proof of the fact was offered on the trial, the court refused to reverse the judgment. The court will not presume spirituous liquors are sold in the bar-room of a tavern, when by law every license to keep a tavern does not authorize the sale of spirituous liquors. Facts that come to the knowledge of a justice after the taial of a cause are properly no part of his return, and must be rejected. ERROR to St. Joseph Circuit Court. Gurney & Hammond, for plaintiff in error, Chipman, in person, By the court, GREEN, J. In 1846, Chipman sued Savier in a justí ce's court in the county of St. Joseph, and recovered a judgment for $40 damages, and $3 91 costs of suit. Savier, conceiving himself ag grieved by such judgment, made a special affidavit, under the provisions of section 10 of the act of 1845, Ses. L. 1845, p. 101, and appealed therefrom to the circuit court of the county. The cause was tried by a jury in that court, at its March term in 1847, and the plaintiff below obtained a verdict and judgment against the defendant below for $42 45 damages, with costs of suit. Exceptions were taken on the trial, and a bill of exceptions was setdled and signed, and made a part of the record; and the defendant thereupon removed the record into this court by writ of error. It appears from the bill of exceptions, a motion was made by the appellant in the circuit court to reverse the judgment of the justice, on the ground the return showed the court was held in a bar-room or place where spirituous liquors were sold, and that, therefore, the justice had |