Jackson, on the demise of Spilsbury and others, against Watson

Jackson, on the demise of Spilsbury and others, against Watson. The claim for the value of improvements under the act of the 5th of April, 1803, will depend on the report of the circuit judgo, to whom title must bo shown. An offer to pay the appraised value made by the plaintiff beforo suit brought, will entitle him to costs. This was an application to be paid for the value of improvements pursuant to the provisions of the act of the 5th of April, 1803, entitled, “ An act grafting relief to certain persons claiming “ title to lands in the counties of Gayugu and Onondaga;” that till the improvements were paid for, execution on the writ of possession might be staid, and that the judgment on the verdict obtained might be entered without any costs of increase. W. Woods, in support of the motion, read an affidavit, stating that the patent for the lands, to recover which the action was brought, was in the name of Jacob Spilsbury, who died previous to the 27th of March, 1803. That the defendant, in 1797, settled on the premises under a Iona fide purchase, for the consideration of 887 dollars and 50 cents, and was in possession. That the improvements had not been appraised, nor had the value of them been tendered or paid. Hildreth, contra, read an affidavit, mentioning that previous *to bringing the suit, an offer was made to pay the value of the improvements. He urged also, that nothing was disclosed to the court evincing a claim in fee, or that the estate of the defendant was such as would, according to the act, entitle him to the value of his improvemerits. But admitting it was, it ought to be made appear in a legal manner. This could not be by. the mere affidavit of the party. It must be proved by the same evidence as titles are, in other cases, substantiated. That this not being done, the defendant had not made out any right to what he claimed. W. Woods, in reply. The acts points out no particular mode, and this has been adopted. [MAJORITY — Per Curiam.] Per Curiam. Let the plaintiff have leave to perfect his judgment with costs to be taxed, and let all other proceedings be staid, that the defendant may have it in his power to apply to the chancellor, under the second section of the act, as he is entitled to the benefit of its provisions. See Jackson v. Bush, 3 Johns. Rep. 512, and Jackson v. Seaman, ibid. 495. As, however, the plaintiff, previous to the commencement of his action, offered-to'pay the value now demanded, we think him entitled to his costs, and we wish it to be understood, that in future, the claims of defendants to the value of their improvements under this act, will depend upon the report of the circuit'judge