
    Jackson, ex dem. Allen and others, against Bell and others.
    /¿seems,that Í6SSOV in ejectment can-clot i'6l(y£is& the action.
    THIS was ¡an action of ejectment brought to recover a " v moiety of lot number 86, in the town of Willet. The . cause was noticed for trial at the Cortland Circuit, on the fourth of June last, when the plaintiff was nonsuited, for want of a confession of lease, entry, and ouster,
    
      Richardson, for the defendants,
    moved to set aside the nonsuit and all subsequent proceedings, and for leave to plead a release to the defendant Bell, (the other two defendants being his tenants,) from Jeremiah D. Hayden, one of the lessors of the plaintiff son and heir of B. Hayden, deceased, from whom the other two lessors derived title, by virtue of a pretended deed from B. H. to F. Runyan, one of the lessors, which had not been proved or recorded, prior to the 20th of February last, when the release was dated; but of which fact the defendants* attorney was not informed until about the first day of June. He had offered to plead the release at the Circuit, but the judge refused,to receive the plea, on the ground that the release had been given before the last May Term. The affidavit of the defendant B. further stated, that since the circuit he had obtained a release from F. Runyan, another of the lessors, of all his right and title to the premises in question, and that Allen, the other lessor, claimed title to the premises, under a deed from Runyan, executed whilst the defendant B. was in possession of the premises, holding adversely. It appeared that issue was joined in the cause, in May 1820.
    
      H. Sedgwick, contra,
    read the affidavit of Allen, one of the lessors, stating, among other things, that he was a bona fide purchaser of the premises from F. Runyan; and that the clerk of the county refused to record his deed, because the proof of its execution was not in due form, &c. That the other two lessors were not beneficially interested in the suit, but were made plaintiffs, because the title of the lessor A. was derived under them. He contended that the nonsuit was properly granted. (Adams’ Eject. 290.) The plea puis darrein continuance, which is of matter arising after issue joined, and before trial, must be pleaded without delay. (Jackson v. Rich. 7 Johns. Rep. 194.) The reason of the indulgence as to such pleas, in cases of bankruptcy or insolvency (2 Johns. Rep. 294. 9 Johns. Rep. 255.) does not apply to this case. Again ; the releases are bad $ 1.-Because, theiessors are tenarits in- tiorriititin With BeZZ;titi3 one tenant jn common cannot release to bis companion, fdr they have separate freeholds. (Co. Litt. 192. b. Cruise's Dig. tit. 20. Walk. Convey. 46.) 2. The lessor ''of the plaintiff in ejectment cannot release the action. James •Jacksijn is the real party on the record:; and it >ls 'Only the Veal party ■ on the record who cán Release'the actitfh. In Doe v. Brewer, (4 Maule & Selw. 300.) Lord Ellenbofough 'observed, -that though for other purposes this -was treStéd'as a - fictitious ..action, yét -as matter*on thefectird, iftotist be taken as really between the parties'to ft.
   Per Curiam.

We are not satisfied that the defendan't has Shown a sufficient excuse for :not -pleading the rél'é'asé before ; but as we see no-equity or justice in the plea, We deny the‘motion;

Motion denied.  