Sec.  2.]  New  Matter.  585

about  the  year  1868,  the  defendants  erected  an  extensive  build-
ing on  the  property,  at  a  cost  of  some  $4,000 ;  that  when  they
began  such  building,  and  for  some  time  thereafter,  the  plaintiff
Kirk  resided  upon  the  adjoining  premises ;  that  during  all  that
time  he  well  knew  of  said  improvements,  made  no  objection
thereto,  and  asserted  no  claim  to  the  property,  except  the  west
three  feet  thereof,  adjoining  his  ground,  and  which  he  claimed
as  an  alley,  and,  even  as  to  such  portion,  he  subsequently  in-
formed the  witness  he  was  mistaken;  and,  lastly,  that  the
plaintiff,  though  residing  in  the  city  of  Washington  ever  since
about  the  year  1865,  never,  to  defendant's  knowledge,  until  the
commencement  of  this  action,  asserted  any  claim  to  the  prem-
ises in  dispute.
At  that  stage  of  the  trial  the  plaintiff  interposed  and  asked
the  court  to  inform  the  jury  that  the  testimony  thus  offered,  in
reference  to  the  defendant's  putting  improvements  on  the  prem-
ises, was  inadmissible  in  law,  and  that  such  issue  ought  to  be
found  for  the  plaintiff.  The  court  ruled  that  the  testimony  was
admissible,  to  which  plaintiff  excepted.  The  defendants  then
gave  the  said  testimony  in  evidence  to  the  jury,  who  rendered
a  verdict  against  the  plaintiff  upon  the  issue  set  forth  by  the
first  bill  of  exceptions.
