There was no evidence of the plaintiff’s possession, or right of possession, before February 21,1896, when the land was conveyed to him, and no evidence of any trespass by the defendant afterwards. Before the date mentioned, the plaintiff was merely assignee of an agreement by trustees to convey the land when the last instalment of the price should be paid, time being declared to be of the essence of the contract. The defendant was agent and manager for the trustees, and the plaintiff could not complain, at least in this form, if the defendant did enter and remove the soil. After the date, the only evidence was that several men dug and carried off gravel in blue wagons, and that the defendant’s wagons were dark blue. Even when taken in connection with previous lawful acts of the defendant, this seems to us too little to make it safe to infer that it was guilty of unlawful acts, and to allow a verdict against it.

The offer of judgment did not affect the case. It was not a pleading, and by Pub. Sts. c. 167, § 76, it was not evidence.

Receptions overruled.