hold goods and other personal effects of the defendant therein into the highway, and put Sowles into possession of the farm; and Ladd seeks to justify his acts in this behalf, in the suit at bar, under the writ of possession. The plaintiff in this suit contends that the justice had no jurisdiction of the subjectmatter, and therefore the writ of possession affords no justification. At the April term, 1898, of Franklin county court, the judgment of the justice was vacated in an action of audita querela brought for that purpose, and it was adjudged therein that the justice was without jurisdiction of the subject-matter, and the judgment of the justice and the writ of possession thereon were set aside and held for naught. No exception was taken thereto, and the question of want of jurisdiction in the justice, thereby became res judicata. But it is said that Ladd, not being a party to the action of audita querela, is not affected by the judgment therein. Assuming, but not deciding, this to be so, we examine the question as to whether the justice had jurisdiction. The object of the action of ejectment in this state being not merely to recover the possession of lands, but to settle the title and establish the right of property, and the judgment, when recovered, being, as between the parties, their heirs and assigns, conclusive evidence of that title (V. S. § 1492; Payne's Adm'r v. Payne, 29 Vt. 172; Marvin v. Dennison, 20 Vt. 662), the plaintiff in the action before the justice, in order to recover, was obliged to show title in himself to the land in question, which is conclusive that the title to land was involved, within the meaning of section 1040, V. S., as held in Jakeway v. Barrett, 38 Vt. 316, and in Dano v. Sessions, 63 Vt. 405, 21 Atl. 922. Clearly the justice was without jurisdiction.

The grounds of the defense made rendered the judgment of the justice, the writ of possession, and the proceedings in relation to the action of audita querela material, and the same were admissible in evidence.

At the close of the evidence each defendant moved for a verdict, but it does not appear from the exceptions that any grounds were stated upon which the motions were based, and therefore, in disregarding them there was no error. State v. Nulty, 57 Vt. 543.

The court held that the writ of possession and the judgment upon which it was issued, were void; that the defendants were trespassers and liable for actual damages, to which holding the defendants excepted. The justice being without jurisdiction of the subjectmatter, as hereinbefore shown, not only was the judgment void, but the writ of possession issued thereon was void, also. It has been argued in behalf of defendant Ladd that, notwithstanding the judgment and writ of pos session were void, inasmuch as a writ of pos session may be issued by a justice upon a judgment in an action under the forcible entry and detainer act, the officer would not know

but that the writ in question was thus issued, and therefore it affords justification for his acts under it. In actions of ejectment, if judgment is rendered for the plaintiff, he shall recover his damages and the seisin and possession of the premises. V. S. § 1491. And the prescribed form of the writ of possession to be used upon such a judgment states that, by the consideration of the court named therein, the plaintiff has recovered judgment for his title and possession of and in the realty therein described. V. S. § 5417, form 5. In actions before a single justice under the forcible entry and detainer act, against a tenant holding over without right, exclusive of rents and costs, the plaintiff can have judgment only for the possession of the premises, and a writ of possession shall issue accordingly. V. S. § 1563. The clause that a writ of possession shall issue accordingly means that the writ shall be so drawn in form and substance as to comply with the law upon which the action is based, and that it shall be within the scope of the judgment upon which it is issued. It appeared by the writ of possession under which defendant Ladd acted that the judgment on which it was issued was rendered by the subscribing justice, and that it was for the plaintiff to recover his title and possession of the farm in question. The law permitting such a judgment to be rendered was without the jurisdiction of the justice, and the defendant was bound to know the law. The writ, therefore, was not fair on its face, and afforded no justification to any one acting under it. Driscoll v. Place, 44 Vt. 252; Carleton v. Taylor, 50 Vt. 220. It follows that the defendants were trespassers and liable for actual damages, as held by the court, and that their ninth and tenth requests to charge, and defendant Ladd's first request, were unsound and properly refused.

Whether the contract was within the statute of frauds, need not be considered; for, if it was, the defendants have waived that defense by allowing the contract to be established by parol evidence without objection, and it must be enforced as proved. Montgomery v. Edwards, 46 Vt. 151; Battell v. Matot, 58 Vt. 271, 5 Atl. 479; Pike v. Pike, 69 Vt. 535, 38 Atl. 265.

The defendants' second request to charge was as follows: "If the jury find that the plaintiff leased the premises without writing for five years, as plaintiff's evidence tends to show, still the defendant, as administrator, would be in the lawful possession of the premises, by his servant, the plaintiff, under the circumstances, at the time of the alleged ejectment from the premises as his testimony tends to show, and this action could not be sustained." Such a lease would have had the effect of creating an estate at will (V. S. § 2218), with the right of possession in the lessee as long as he was allowed to occupy and carry on the farm thereunder; and such an estate may ripen into a tenancy

from year to year, thereby entitling the lessee to six months' notice to quit before yielding possession of the premises to the lessor. Amsden v. Atwood, 69 Vt. 527, 38 Atl. 263; Id., 67 Vt. 289, 31 Atl. 448. This request was unsound in principle, and properly disregarded.

Defendants contend that by reason of the submission to arbitrators the plaintiff is barred from maintaining this action, and that his only remedy is upon the bond given by the defendant Sowles to abide and perform the award. This contention is untenable. Notwithstanding the agreement not to revoke the submission, either party had the right so to do at any time before an award was made and published. Aspinwall v. Tousey, 2 Tyler, 328; People v. Nash, 111 N. Y. 310, 18 N. E. 630, 2 L. R. A. 180, 7 Am. St. Rep. 747. And when the submission was revoked it was no bar to this action. Chit. Cont. 884; Day v. Bank, 13 Vt. 97. Therefore in refusing to comply with defendants' twelfth, thirteenth, and fourteenth requests there was no error.

The action of the county court in overruling defendants' motion to set aside the verdict on the ground that the damages were excessive is not revisable here. Sowles v. Carr, 69 Vt. 414, 38 Atl. 77. The granting of a certified execution rested largely in the discretion of the county court, upon the facts found by it, and is not revisable in this court. Melendy v. Spaulding, 54 Vt. 517.

This disposes of all the questions raised by the exceptions in which defendants, in argument, claimed there was error, and none other are considered. Judgment affirmed.

EXECUTORS AND ADMINISTRATORS - GIFTS
RECOVERY-PLEADING-DEFENSE - CHANGE
LETTERS GENUINENESS EVIDENCE
DECLARATIONS BY DECEASED ACCOUNT
CON-
BOOKS RECOGNITION ADMISSION
TRACT-VALUE OF ESTATE-OPINION-BUSI-

NESS ASSOCIATE-INVENTORY-CONDUCT OF COUNSEL - STATEMENTS-MATERIAL FACTS -LETTERS-CONSTRUCTION.

1. Where a notice filed with the general issue placed defendant's ground of defense on a contract, it would not prevent him from changing the date and form of the contract to meet the evidence introduced by plaintiff, since such notice is treated as a pleading, not as a specification, and any evidence tending to show that there was never a cause of action could be made available under the general issue.

2. Defendant's counsel, by notice filed with the general issue, and by their conduct of the trial, relied on a contract by which defendant was promised a certain amount in consideration of his return to Vermont. During the trial the plaintiff's evidence was such that defendant was forced to take the position that the contract was made after his return, and in consideration of his remaining. Held, that defendant was not precluded from making such change, since the plaintiff was not thereby

prejudiced, the essence of the contract being the same.

3. Where correspondence indicated that defendant returned in consequence of certain negotiations, to remain if satisfactory arrange ments could be concluded, and the evidence showed that he did remain, and that his father-in-law had stated that he had given him a certain sum, which defendant claimed to be the consideration of his remaining, there was sufficient evidence to show a contract made after defendant's return.

4. Where it was claimed that a clause in a letter promising a sum of money to defendant was not in the letter when sent, testimony of one who saw the letter within an hour after it was received was competent.

5. Declarations of a deceased as to gifts made to his son, and trouble had between him and his son's wife, were admissible in an action against a son-in-law to recover money claimed to have been loaned to him by deceased, since they tended to give force and certainty to his further declaration that he had made a similar gift to the son-in-law.

6. Where defendant's clerk had shown deceased certain items of rent credited him on goods bought at the store, and the latter had looked the account over and said it was probably right, the account was admissible in connection with the testimony of the witness, as tending to show a part payment of rent sned for, not as a book of original entries, but because it had been recognized by deceased as a true account.

7. An account book recognized by deceased as stating a correct balance was not inadmissible by reason of the fact that no plea in offset to a suit for rent by administrators had been filed. since it had a tendency to show that deceased had acquiesced in the application of the rent in payment of his store account.

8. Where defendant claimed that deceased had given him $6,000 to return to Vermont, so that his daughter (defendant's wife) would live near him, evidence that deceased could well afford to do what he did was admissible, as bearing upon the probability of such agreement. 9. Where a witness who had been associated in business with deceased for many years stated what he knew of his property, and gave his opinion of his worth, based on that knowledge. such evidence, though subject to uncertainty. was admissible on the ground that it would be impracticable in the case of unsettled estates to prove the fact in any other way.

10. The fact that an inventory of an intestate's estate filed in the probate court had been introduced in evidence to show what the deceased was worth, without any mention of his debts, was not reversible error, where the exceptions failed to show whether or not evidence of the debts had been given.

11. Where defendant claimed that his wife's father had given him a sum of money to induce him to return to Vermont, testimony that the deceased two years afterwards had taken back a life lease on land deeded to another daughter was inadmissible to show that he was not at the time giving away his estate, since the transactions were two years apart, and one had no bearing on the probability of the other. 12. Where a witness testified that deceased had told him that he had made a gift of a house to his daughter, evidence that he had taken back a life lease from the daughter was inadmissible to rebut his testimony, since he testified, not to the fact, but to the statement made, and the transaction might naturally be spoken of by the deceased as a gift.

13. Where an administrator brought assumpsit to recover rent for money loaned defendant, statements by defendant's counsel that the law prevented defendant and his wife from testifying as to many facts which they knew, but could not show, were improper and prejudicial.

14. During the trial of an action by administrators to recover for rent and for money loaned defendant, the latter's counsel gave to plaintiffs' counsel letters written by deceased to defendant's wife, asking that they be put into the case by plaintiffs. The letters were inadmissible in favor of defendant. Defendant's counsel afterwards commented on plaintiffs' failure to introduce them. Held erroneous, as an attempt to make evidence for defendant. 15. Matters shown by the files, not pertaining to the trial at bar, and not brought before the jury in connection with it, cannot be made use of in argument; and hence it was error for counsel to state to the jury what appeared in affidavits for a continuance at a previous term.

16. The absence of any charge of items sued for, in an intestate's books, and failure to present such books in evidence, was a circumstance tending to show that money claimed to have been loaned to defendant was not considered a debt, though defendant conceded the receipt of the money, since such concession touched only the delivery of the money, and not the question of the repayment.

17. Where defendant's counsel, after notice, had stated that all letters of which they ever had any knowledge were produced, an instruction that the jury had a right to assume the existence of another letter referred to in the correspondence in evidence was not erroneous, since counsel's statement had no effect on plaintiffs' case, and the existence of such letter might well be assumed from the remaining

letters.

18. Where letters were introduced in evidence to show the various steps and circumstances leading to the formation of a contract, and were not claimed to constitute a contract in themselves, their construction was not a question for the court, but the inferences arising therefrom were to be considered by the jury in connection with the remaining evidence.

Exceptions from Orleans county court. Action by Blaisdell and Barron, administrators, against George H. Davis. Verdict for plaintiffs for less than the relief demanded, and they bring exceptions. Reversed.

General assumpsit, with specifications for money loaned and for rent. Pleas, the general issue, with notice, and payment. Trial by jury, Orleans county, September term, 1897; Rowell, J., presiding. The court directed a verdict for the plaintiffs for $204.07, with interest thereon, the sum named being conceded by the defendant to be due and unpaid as rent, and submitted to the jury the right of the plaintiffs to recover in excess of that amount. Verdict for the plaintiffs to recover $204.07, with interest. Judgment on verdict. The plaintiffs excepted. The action was brought by B. M. R. Nelson in his lifetime, and after his death was prosecuted by W. H. Blaisdell and E. W. Barron as special administrators of his estate. The plaintiffs sought to recover as rent a larger sum than $204.07, and also claimed to recover $6,000 on the ground that the decedent had loaned that amount to the defendant. It appeared that the defendant's wife and Sam Nelson were the only children of the decedent. The defendant called one Enoch Rowell as a witness, who testified that in the summer of 1894 the decedent told him that he had given the defendant $6,000, and had given the defendant's wife what he called $4,000. He tes

tified that these statements were made in the course of a conversation with reference to trouble between the decedent and the wife of his son Sam, and some part of the conversation, connected with the statement as to the gift to the defendant, but not directly concerning it, was testified to by the witness. The defendant also called Sam Nelson as a witness, and his testimony tended to show that the decedent had told him that he had given the defendant $6,000. As tending to show how the decedent came to say this, he was allowed to testify to other parts of the conversation which showed that the matter came up in connection with a contemplated gift to the witness of a like amount, and that the gift of $6,000 to the defendant was referred to by the decedent as a reason for the contemplated gift to the witness. The evidence consisted largely of letters, the number and nature of which are set out in the opinion. To the argument of the defendant's counsel as to the inferences proper to be drawn from the letter of December 18th, the plaintiff assigned his objections, which were only that it was not in line with the defense pleaded, that the plaintiff had had no notice of the claim made in argument, and that there was no evidence supporting it. To the instruction of the court in regard to the inferences which the jury might draw from that letter the plaintiff also assigned his objections, which were only that it was for the court, and not for the jury, to say what the letter indicated, and that there was no evidence tending to show that any letter was written modifying the offer contained in the letter of December 12th.

Argued before ROSS, C. J., and TAFT, TYLER, MUNSON, START, and THOMPSON, JJ.

John Young and W. W. Miles, for plaintiffs. F. W. Baldwin and Bates, May & Simonds, for defendant.

MUNSON, J. The plaintiffs, special administrators of the estate of B. M. R. Nelson, sought to recover $6,000 claimed to have been loaned defendant by the deceased. The exceptions state that the defendant admitted the receipt of the money as charged, and made no claim that he had repaid it, and pleaded only the general issue, with notice. This notice was, in substance, that on the 1st day of October, 1890, the defendant was the husband of Nelson's only daughter, and was living and engaged in business at West Superior, Wis., and that Nelson, in consideration that the defendant would at once sell out his business and return to Barton, Vt., to live, agreed to give him for so doing the sum of $6,000, and that in accordance with such contract and agreement the defendant did at once thereafter sell out his business at a great sacrifice, and return to Barton to live. and that Nelson paid the defendant for selling out his business the sum of $6,000; it be

ing the same money mentioned in the first eight items of the plaintiffs' specifications. In making an opening statement to the jury, defendant's counsel said he expected it would turn out in evidence that there was a great deal of correspondence between Nelson and the defendant with reference to the defendant's returning to Vermont, and that on account of the final agreement and contract that was made between them the defendant did return to Vermont and remain there. At the conclusion of this statement, defendant's counsel conceded the receipt of the $6,000, and said, "We claim that Nelson paid it to Davis on this contract." The plaintiffs also claimed to recover an item of rent, and the defendant conceded his liability for any balance of it remaining unpaid, and the plaintiffs thereupon rested their case. Defendant's counsel then said that there was unquestionably a prima facie case for the plaintiffs as far as the rent was concerned, but that they would like a ruling as to whether the plaintiffs had made out a prima facie case for the $6,000, and the court then ruled that the defendant's concession as to the $6,000 made a prima facie case for the plaintiffs upon that part of their claim; and the defendant, without excepting to this ruling, proceeded with his evidence.

The exceptions state that the only evidence tending to show any contract or arrangement between Nelson and the defendant for the defendant's return to Barton, made before such return, was a correspondence covering nine letters from Nelson to the defendant or his wife, introduced by the defendant, and eleven letters from the defendant or his wife to Nelson, introduced by the plaintiffs. It may be gathered from these letters that the defendant and his wife had left Barton for a trip to the West not long before the commencement of the correspondence, and that there had been some talk before their departure about the defendant's going into business in Barton with financial assistance from Nelson; that Nelson did not anticipate that the defendant would establish himself elsewhere without further discussion of this plan, but that the defendant was disappointed at not receiving some definite statement from Nelson before leaving, and went with an inclination to locate in the West if circumstances were favorable; that, before the matter was decided, defendant's wife wrote Nelson, with a view to ascertaining his intentions, and received a response which the defendant regarded as discouraging; that the defendant finally bought an interest in his brother's business at West Superior, without further communication with Nelson; and that Nelson was greatly disturbed when he learned what had been done. The earlier correspondence relating to the trouble can be sufficiently characterized by a general statement. The letters of Nelson express throughout a great desire to have the defendant sell out and return as soon as possible, and a willing

ness to make good his loss in doing so, and assist him after his return. The defendant at first urges the necessity of their remaining, but afterwards expresses a willingness to return if Nelson advises it after considering the matters submitted. It is evident, however, that this was followed by the making and withdrawal of further objections in letters not produced; for Nelson afterwards speaks of his disappointment in finding that what he had written was deemed insufficient, and later of his pleasure at the prospect of their speedy return. In the letter last referred to, Nelson remarked that he did not want the defendant to do anything to injure himself financially, and asked defendant to write him what he should expect him to do for him when he got back. In reply to this the defendant wrote that he should at least expect him to fix up the store as had been talked, and let him have it rent free, and furnish him not to exceed $8,000 without interest, to be paid back as fast as it could be without injury to the business; Nelson to have what goods he took at cost and freight. To this Nelson replied, under date of December 12th, that if the defendant would come back he would fix up the store to suit him, and let him have the use of the store and $8,000 in money without rent or interest until the rent and interest should amount to $1,000, and pay the regular price for what he had from the store; and the letter contains the further statement that if this was not satisfactory he would give defendant $6,000, and let him have it along as needed. Defendant's letter of December 18th, written partly by himself and partly by his wife, does not acknowledge the receipt of the above communication, but would seem, from its contents, to have been written in reply to it. In this letter the defendant speaks of the difference between his wife's having money and his having it in his own right, and further on says he can see Nelson's offer in no other light than that he will give him the equivalent of $1,000 and put him under a debt drawing interest after 18 months; and his wife says it is only giving him $1,000, and that if they stayed there they would not need to borrow money and pay interest. In offering the letter of December 12th, defendant's counsel spoke of it as "conclusive of the case." The plaintiff's objected to its admission on the ground that the alternative proposition to give the defendant $6,000 was not written therein by Nelson. No letter written by Nelson later than December 12th was produced, but a letter from the defendant's wife speaks of one dated the 27th. The exceptions show that the plaintiffs notified the defendant to produce all letters received by the defendant or his wife from Nelson after December 12, 1890, and that defendant's counsel replied, "These letters, Exhibits 1 to 11, are all the letters that the de fendant or his wife received from Mr. Nelson after that date that we can find or know anything about, or ever knew anything about."