
    
      Jackson, ex dem. Smith and Johnston, against M'Connel.
    
      NEW YORK,
    
    October, 1814.
    Where issue was joined in an action of ejectment, on an alien, resilani, claiming imder'th^Mt %ri™ ‘¿rm, 72)S"before the declaration of the war; it was held, that the Objection, that the lessor ofthe atie^eriemy^" could not be made under suefbutshónid have been pleaded puts darrein continuance.
    
    Where apar* ty brings an action of ejectment,before he has offered to have the improvements vapa/’for"them, a'cHA^ii Ül yol. i. p. 304.) he cannot recoverc_osts,nor session, until incuts are v_aiued, and paid
    THE facts in this case, which was argued together with that of Jackson, ex dem. Johnston and others, v. Decker, last report- * ed, are the same, except that the suit, having been commenced before the death of John Lowther Johnston, the demise was laid from him, instead of his heirs; and the issue was joined before the commencement of the war. It was also tried at the Seneca circuit, on the 27th of May, 1814. The defendant’s counsel also insisted, at the trial, that John Lowther Johnston was not the heir at law of Lady Bath ; but the judge J do overruled the objection, and decided that the lessor was en- . , , , . , titled to recover as heir at common law.
    It was also objected, on the. argument, that the plaintiff was not offered to the defendant to have the value of the improve-not entitled to recover costs, in this cause, because he had the value of the irnproi ments appraised, pursuant to the act. (Sess. 36. c. 80. s. 4.)
    
      Henry and Van Vechten, for the plaintiff.
    
      Kellogg, contra.
   Spehcee, J.

delivered the opinion of the court. The only difference between the case just now decided, and the present, is that the issue in this suit was joined before the declaration of ° war. In this case, then, a new defence had arisenand when the demise was made, the lessors of the plaintiff could well make it. The defendant should have disclosed his new defence, a p|ea pu{s ¿arre{n continuance, and could not take the objection under the general issue. The plaintiff is, therefore, entitled to possession, whenever the improvements have been Valued according to the statute, and paid for; but the plaintiff is not entitled to costs, as he did not offer to have the improvements valued, and to pay for them, before he brought the suit.

Judgment for the plaintiff, accordingly,  