¶1It was not competent for the tenant to set up a title under the deed of mortgage to Edward King, which had been assigned to the tenant after the institution of the present suit. Independently of any other objection, it was a sufficient ground for rejecting the evidence offered to show such title, that it had been acquired after action brought. Andrews v. Hooper, 13 Mass. 472. Parlin v. Haynes, 5 Greenl. 178. It is no sufficient answer to this, that to reject this evidence will only lead to circuity of action, as the tenant has now a title which will avail him in a new action, and entitle him to the possession of the demanded premises. The doctrine of rebutter is one of equity, and to be applied where it will do justice to the parties; but it is quite obvious, that to allow a tenant, who holds without right at the time of the commencement of a suit, to avoid liability to pay costs, and acquire the right to tax costs, as the prevailing party, by the acquisition of an independent title pending the litigation, might work great injustice. Such evidence, it is believed, has been uniformly rejected.
¶2Exceptions overruled.