The opinion of the Court was delivered by

Graig.e & Walker against whom a recovery was had in an, action of ejectment brought by Ladd against them, attempted to file a declaration for better-ments agreeably to the provisions of the Statute. Th¡3 was opposed by Ladd on the ground, that it appeared on the trial of the action of ejectment, that they did not take possession until after the passing of the act giving this pro*268cess recover &r improvements made by a íonajide pos-sessor of lands. The County Court refused to permit them to file their declaration. And an exception was taken to the decision of the County Court in refusing this permission. In this, the decision of the County Court was erroneous. The right to file a declaration for betterments is given by Statute, and does not depend on the facts which appear in evidence, or the proceedings had in the trial of the action of ejectment. It is given on the recovery of a judgement in that action, and it is not essential that there should be any trial of the merits of the action of ejectment. A defendant who is sued in an action of ejectment may abandon all defence and suffer a judgement to pass against him by default, or nil dicit, and if he is entitled to bet-terments may file his declaration and recover therefor.

It is on the trial to be had on this declaration that it must be determined whether the person seeking to recover for the improvements which he has made on lands of which he has been in possession, and entered under a supposed title within the time limited by the Statute, is entitled to the benefit therein provided. These questions cannot be decided by the Court on an objection to filing a declaration, but must be left to the decision of a jury who may be impannelled to try the action for betterments. If the Statute operates unfavourably, by causing a delay of the writ of possession, it is incident to the nature of the proceeding, and the Court cannot remedy the fault, if there is any.

The judgement of the County Court' must be reversed and the declaration for betterments may be filed agreeably to the provisions of the Statute.