
    Joseph Prout versus Simon Libby.
    A plea of non-tenure without disclaimer was holden good.
    This was a writ of formedon in remainder, to which the said ldbby pleaded the following plea: —
    “ And now the said Libby comes and defends, and prays judgment of the writ and declaration aforesaid, and that the same may be abated; because he says that he is not tenant of the freehold of the demanded premises, nor was he at the time of the commencement * of said action ; but that Simon Libby, [ * 152 ] Jun., of, &c., at that time was tenant of the freehold of said premises, and that he, the said Simon Libby, at the time aforesaid, was, and now is, only tenant at will of the same under the said Simon Libby, Jun.; and this he is ready to verify ; wherefore he prays judgment of the writ and declaration aforesaid, and that the same may be abated.”
    To this plea the demandant demurred, and the said Libby joined in demurrer.
    
      Whitman and Hoplcins, in support of the demurrer,
    argued that the tenant was bound to disclaim, and that a plea of non-tenure without disclaimer, though good in England, where its only effect is to put an end to the suit without judgment,  is not a good plea here ; since the demandant is, by our statute,  entitled to judgment for costs against the tenant in possession, whether tenant of the freehold or not, if he has illegally withheld the possession from the demandant.
    
      Mellen and Longfellow for the tenant.
    
      
       13 Mass. Rep. 499, Prescott vs Hutchinson.
      
    
    
      
      
        Slat. 1795, c. 75.
    
   Per Curiam.

The statute does not require a disclaimer; and the plea is sufficient at common law.

Writ abated.  