— By the Act of August 10, 1846, chap. 221, it is provided, that “in all writs of entry, the defendant may plead that he is not tenant of the freehold, in abatement, but not in bar. And if any defendant would avail himself of the provisions of the ninth section of the one hundred and forty-fifth chapter of the Revised Statutes, his pleadings and brief statement shall be filed within the time required for filing pleas of abatement, and not after, except by special leave of the Court, and on such terms as the Court shall direct.”
The substance of the tenant’s brief statement is, that he was not tenant of the freehold, but held the possession of the premises as tenant, under Stephen Hilton. This was not filed at the first term of the Court, and if such ground of defence could be presented by a brief statement, it was not done in season, and the tenant was precluded at that time from making such defence.
An omission of the demandant to comply with the order of Court, to file an informal statement of his title, according to chap. 145, sect. 5, would not authorize matter in abatement, to be pleaded in bar.
It is not apparent that an exhibition of title would have been of any service to the tenant, if his defence was placed altogether upon the ground, that he was not tenant of the freehold. If the action had proceeded to trial, no evidence could have been received of the character of that, contemplated by the brief statement. The nonsuit is taken off, and the action is to stand for trial.