
    COUNTY OF SOMERSET.
    † Rowell, Administrator, versus Hayden & al.
    
    Matters in defence, arising after the commencement of the suit, and before issue joined, cannot be pleaded in bar generally, but may be as to the further maintenance of the suit.
    And where such a plea sets forth a conveyance by demandant of the premises, by a deed duly executed, acknowledged and recorded, it wül be sufficient though it omits to allege that the deed was delivered.
    
    Objection to the time oí filing a plea puis darrein continuance, cannot be made upon demurrer, but through a motion to set aside the plea.
    If the demandant in a real action, after the commencement of his suit, conveys, by deed, to a third person, the premises demanded, the tenant may successfully interpose a plea in bar to the further maintenance of his suit.
    
      Writ of Entry, to recover possession of a farm in Madison.
    This action was commenced on December 29, 1849, and tried before Tenney, J., at the Dec. term, 1854.
    On Sept. 26, 1854, the pleadings were made up and filed. The tenants separately pleaded the general issue, which was joined; and also separately pleaded in bar as follows : —
    
      “ And the said Hayden, for farther plea, by leave of the Court here obtained, says, that the said demandant, his said action ought not further to have or maintain, because, he says, that since the commencement of this action, and during the pending thereof, to wit, on the twentieth day of Dec., 1852, the said demandant, by his deed of that date, duly executed, acknowledged and recorded, for a valuable consideration in said deed mentioned, to wit, the sum of nine hundred dollars, conveyed the said demanded premises to one Asa GL Holt, whereby the said demandant was wholly divested of all right, title and interest in and to the demanded premises, and this he is ready to verify. Wherefore he prays judgment if the said demandant, his said action against him ought further to have or maintain, and for his costs.”
    To these pleas demandant demurred generally, and there was a joinder in demurrer.
    As to one defendant additional pleadings were filed, which, in the decision of the cause, became immaterial.
    The cause was tried before Tenney, J., and, under the instructions of the Court, a verdict was returned for demandant, also a special verdict that certain deeds of defendants under which demandant claimed title, in his replication, were not the deeds of the alleged grantors.
    Exceptions to the rulings of the presiding Judge were taken by the counsel for demandant, also a motion filed for a new trial.
    It was agreed, that if upon the documentary evidence under the writ and pleadings, together with the facts found by the jury under the special issue, as they appear by the verdicts upon that issue, the demandant is entitled to recover, judgment is to be rendered upon the verdict returned on the general issue. But if the tenants are entitled to recover by law under the pleadings, from the documentary evidence and the facts found by the jury under the special issue, the verdict under the general issue is to be amended so as to be in favor of the tenants, and judgment thereon to be entered in their favor, unless the verdict under the special issue shall be set aside under the motion therefor, or upon exceptions, in which case the verdicts upon the issue of fact are to be set aside, and the action to stand for trial; but neither party was precluded from moving to amend the pleadings, or from resisting such motion.
    
      J. /S'. Abbott, for demandant.
    
      Coburn & Wyman, for tenant.
   Rice, J.

The case is presented on report and exceptions, also upon questions arising on the pleadings.

The defendants severally pleaded the general issue which was joined. They also severally pleaded, in bar, specially, that the demandant ought not further to have and maintain his action, because since the commencement of this action, and during the pendency thereof, to wit, on the 20th day of December, 1852, the said demandant, by his deed, of that date duly executed, acknowledged and recorded, for a valuable consideration in said deed mentioned, to wit, the sum of nine hundred dollars, conveyed the said demanded premises to one Asa G-. Holt, whereby said demandant was wholly divested of all right, title and interest in and to the demanded premises, &c.

.To these pleas the demandant demurred generally, in which the defendants joined.

In support of the demurrers the demandant contends that the pleas are defective, inasmuch as they do not allege that the deed from him to Holt was delivered. Whether, if this omission were a defect in the pleas, the demandant could avail himself of such defect on general demurrer, may admit of doubt. He should have replied that nothing passed by the deed. Howard v. Chadbourne, 5 Maine, 15; Walcott v. Knights, 6 Mass. 418.

But the pleas are not defective. The fact that a deed is recorded is prima facie evidence that it has been delivered. Chess v. Chess, 1 Penn. 32; Jackson v. Perkins, 2 Wend. 308; Gilbert v. N. A. Ins. Co., 23 Wend. 43.

But it is further contended, that if the deed is properly pleaded, the defendants cannot avail themselves of it in defence.

The writ is dated Dec. 29, 1851. The deed set out in defendants’ plea bears date Dec. 20th, 1852. The pleas were filed, as appears by agreement of demandant’s counsel, Sept. 26, 1854.

The rule is, that when matter of defence has arisen after the commencement of the suit, it cannot be pleaded in bar of the action generally, but must, when it has arisen before plea, or continuance, be pleaded as to the further maintenance of the suit; and when it has arisen after issue joined, puis darrein continuance. Heaton v. Lyman, 5 Peters, 224; LeBret v. Papillou, 4 East, 502; Covell v. Weston, 20 Johns. 414; Bank of U. S. v. Merchants' Bank of Baltimore, 7 Gill. 415; Bailey v. March, 2 N. H. 522; Semmes v. Naylor, 12 Gill. & Johns. 361.

These pleas appear to have been filed before issue joined, and therefore fall within the principle of the authorities above cited.

If, as the demandant suggests, they are to be treated as pleas, puis darrein continuance, the result cannot be changed, because an objection to such a plea, that it was not pleaded in proper time, cannot be taken advantage of on demurrer; it should be on a motion to set aside the plea. Ludlow v. McCrea, 1 Wend. 228.

Whether a plea of puis darrein continuance shall be received, after a continuance has intervened, is in the discretion of the Court. Morgan v. Dyer, 10 Johns. 161.

If the plaintiff neglect to plead matter which has arisen since the last continuance, at the next term, he cannot claim a right to plead it at a subsequent term. But the Court, in its discretion, may grant leave to plead it nunc pro tunc, and when it thus exercises its discretion, may impose the payment of costs. Stevens v. Thompson, 15 N. H. 410; 1 Chit. Plead. 659.

It is in the discretion of the Court.to receive the plea or not, even after more than one continuance has intervened, and this discretion will be governed by circumstances extrinsic, and which cannot appear on the face of the plea. Wilson v. Hamilton, 4 S. & R. 238; Tufts v. Gibbons, 19 Wend. 639; Rangely v. Webster, 11 N. H. 299.

That the defendant had by his deed to Holt divested himself of all right, title and interest, in and to the demanded premises, is admitted by the pleadings, as a demurrer admits all the facts which are well pleaded. And that the defendants may avail themselves by proper pleas of the fact, that the demandant has divested himself of all right, title or interest in and to the demanded premises, after action - brought, is well sustained by authorities. Howard v. Chadbourn, 5 Maine, 15 ; Walcott v. Knight, 6 Mass. 418; Bailey v. March, 2 N. H. 522.

Under the pleadings, we think it clear that the action cannot be maintained in the name of the demandant. It therefore becomes unnecessary to consider the questions raised by exceptions during the progress of the trial. According to the agreement, the verdict for the demandant under the general issue is to be set aside, and judgment entered for the defendants under their special pleas in bar against the demandants’ right further to maintain the suit.  