Jackson ex dem. Smith v. M'Connel

11 Johns. 424

Opinion

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,