
    Gardiner S. Barber vs. John C. James.
    WASHINGTON
    
      APRIL 24, 1899.
    Present : Matteson, C. J., Stiness and Tillinghast, JJ.
    (1) Pleading and Practice. Trespass and Ejectment. Defects in Declaration.
    
    Submission to judgment by a defendant is a waiver of the right to take advantage of defects in a declaration by motion in arrest of judgment.
    Where a declaration in an action of trespass and ejectment does not set out the estate of the plaintiff in the demanded premises, judgment in his favor does not determine the question of title, but merely gives possession of the premises to the plaintiff.
    Trespass and Ejectment. Heard on motion of defendant in arrest of judgment. Motion overruled.
    
      
      S. W. K. Allen, for plaintiff.
    
      F. O. Olney and J. M. Brennan, for defendant.
   Per Curiam.

Our opinion is that the defendant’s submission to judgment for the plaintiff for possession waived his right to take advantage of the defect in the declaration set up in the motion in arrest of judgment. As the declaration does not set out the plaintiff’s estate in the demanded premises, which is the ground of the motion in arrest, the judgment in his favor will not determine any question of title (Taylor v. O’Neil, 15 R. I. 198), but merely gives the plaintiff possession in accordance with the defendant’s submission.

The motion in arrest of judgment is overruled, and the case remitted to the Common Pleas Division with direction to enter judgment on the submission for the plaintiff for possession and costs.  