1. The evidence offered to show that when the action was brought the tenant was not in possession was rightly excluded. Under the pleadings the question was not open. The tenant’s plea of nul disseisin admitted that he was tenant of the freehold, and there was no specification to qualify the effect of this plea.
2. The question of amendment was addressed to the discretion of the court, and is not the subject of exception. And, more than that, we think the discretion was properly used.
3. The evidence to show that the agreement to have the wood appropriated to the payment of the book account was made after proceedings in insolvency were instituted should have been received. Under the contract the wood had been delivered. It became the property of the plaintiffs upon such delivery. Nothing remained to be done but the measurement and computation to ascertain the amount of payment. Indeed, it would appear from the books that even the amount had been ascertained. It was not a contract for the sale of a part of an entire lot, and requiring severance and measurement before the title of the vendee could be perfected.
This contract or agreement for the appropriation of the price of the wood to the payment of the mortgage the parties might indeed modify or wholly rescind. The plaintiffs attempted to show such change of the contract by the testimony of Gates.
The evidence of Gates left it uncertain whether the agreement for a change in the appropriation of the price of the wood was before or after the defendant’s insolvency. It fixed no time for the agreement, though it left it probable that the time was subsequent to the insolvency. The defendant offered to show the true time. No judgment could be formed of the validity of such an agreement for a change of the written contract, until it was ascertained whether the agreement was made before the institution of proceedings in insolvency. After the defendant had been declared insolvent, he could not change the appropriation. His right in and power over the mortgage or the proceeds of the sale of the wood were gone. Exceptions sustained.