
    THOMAS McCLEARY against JONATHAN ALLEN.
    IN ERROR.
    in an action brought by a landlord against his tenant, to recover the rent, it is not competent for the tenant to give in evidence,*that immediately after the term had ended, for which the rent 'Was claimed,, the lSndlord was ejected from the land, by an execution which' issifed.ltpon a judgment in an action of ejectment, which had been brought against the landlord and the tenant during tlie pendency of the lease. • > ,
    Error to the common pleas of Mercer county.
    This was an action of covenant, brought by Jonathan Allen against Thomas McCleary, upon a lease, dated 26th Feb. 1823, to recover three years’ rent of a tract of land: from 1st April, 1823, till 1st April, 1826. É
    
    The defendant offered in evidence the record of an action of ejectment brought by Mathias Flock against Jonathan Jlllcn and Thomas McCleary to May Term, 1S24, to recover the land, for which the rent sued for was claimed: by which it appeared that the cause was tried on the 22d August, 1826, and a verdict and judgment were rendered for the plaintiff: upon which an hab.fas. poss. issued 7th December, 1827, which the sheriff returned, “turn" ed defendants out of possession; plaintiff had notice, but did not attend to receive possession.” The defendant also offered to accompany this offer with evidence, that a notice was served upon him by Flock, that he was the owner of the land.
    This evidence was objected to by the plaintiff.
    Sippen, President. — As the eviction by Flock, was not until after the lease, upon which suit is brought, had expired; and Mc-Cleary the tenant enjoyed all the benefits of the lease; the evidence offered, if true, would not be either a legal or equitable de-fence against the payment of the rent. It is therefore rejected. The rejection of this evidence was here assigned as error. ■ • •
    
      Selden and S. B. Foster for plaintiff in error.
    Cited Banders ■v. Fletcher, 11 Serg. & Rawle, 419.
    
      Banks for defendant in error.
    Cited 1 Saun. 204 in note. Hobart’s Jtep. 190, in note to Bond v. Andrews L. Raym. 370. Cowp. Rep 242. 1 Espinass. N. P. 266. 1 Salk. 277.
   Judgment, affirmed.  