The opinion of the Court was drawn up by

The first question presented in this bill of exceptions is, whether the Judge presiding at the trial, improperly refused to allow the defendants to file a brief statement, alleging title in one of them. The statute of 1821, prescribing the power of Justices of the Peace, c. 76, § 11, provides, that when any action of trespass shall be brought before any Justice of the Peace, and the defendant shall plead the general issue, he shall not be allowed to offer any evidence that may bring the title of real estate in question. In the case of Hodgdon v. Foster, 9 Greenl. 113, it was decided, that so much of the statute of 1821, as requires a special plea of title, was repealed by the statute of 1831, ch. 514, abolishing special pleading; and that the jurisdiction of the justice would be superseded by filing a plea of the general issue accompanied by a brief statement, in accordance with the provisions of the statute of 1831, claiming title. Such brief statement having the effect of a special plea of title, the absence of it leaves the case before the magistrate subject to the operation of the clause recited from the eleventh section of the statute of 1821; as it was manifestly the intention of the legislature, that the magistrates should not decide upon the title to real estate. The design of the statute abolishing *443special pleading, was not to alter tlio rights of parties, but to act upon the forms of proceeding by which those rights were to he presented for decision. In this case, there being no claim of title put in before the magistrate, he heard the case upon the merits, and the appeal only carried up the case as it was presented before him. To have allowed the question of title to have been made above, would have been to substitute a new controversy after the appeal; and there can be no doubt, that the brief statement, proposing to do it, was properly rejected. It appears from the bill of exceptions, that although the brief statement was rejected, the defendants were permitted “ to go into evidence in the same manner as if a brief statement claiming title ” had been filed; and the evidence introduced, and instructions given, which are the other subjects of complaint, had reference to the title thus brought into contestation. As it was by favor only, that such a course was allowed, the testimony and instructions were irrelative to the issue, which could be tried as matter of right; and if any latitude was given in the testimony, or error committed in the instructions, which are not the subjects of consideration, the effect was only to qualify a favor, not to violate a right.

The exceptions are overruled, and judgment is to be entered upon the verdict.