
    Johnson against Kerr for the use of Kerr.
    In Error.
    THIS was a writ of error to the Common Pleas of Butler county, on which a bill of exceptions was returned together with the record.
    
      William Kerr, who sued for the use of James Kerr, brought an action of covenant against Johnson on certain articles of agreement dated the 27th April, 1807, by which William Kerr leased to Johnson a tract of land for two years from the 1st April, 1807. It appeared in evidence on the trial that, prior to the 1st April, 1805, William Kerr was seised of this tract of land, but on that day he conveyed it to his father James Kerr, for whose use the action was brought. The defendant claimed under John Gilmore, who had purchased the land at sheriff’s sale, on the 4th March, 18Ó9, as the property of William Kerr, against whom judgment had been obtained, and execution issued. The defendant offered in evidence a release from John Gilmore of the cause of action, dated on the day of trial, but it was objected to by the plaintiff, and overruled by the Court, and an exception taken.
    
      The declarations of a person who makes a lease, and in whose name the suit is brought for anothers use, may be given in evidence by the lessee,. A release cannot be given in evidence without being pleaded.
    
      The defendant alleged and endeavoured to prove that the deed from William Kerr to James Kerr was made without consideration, and with intent to defraud creditors; and gave in evidence that after the execution of the deed of the 1st April, 1805, William Kerr continued in possession of the land, exercising acts of ownership, and that he sometimes said he had sold it to his father, and sometimes said he had not. He then offered evidence of the declarations of William Kerr after the execution, and during the continuance of the lease, as to his interest in the land. This evidence was objected to by the plaintiff, and overruled by the Court, who sealed a bill of exceptions. A verdict and judgment were given for the plaintiff in the court below.
    
      Baldwin for the plaintiff, in error.
    Ayres, contra.
   By the Court.

The release of Gilmore was not evidence, not having been pleaded. In that the Court below were right. But they were wrong in rejecting the declarations of William Kerr, because the lease was made by him and the action brought in his name. Neither does it appear that the lease was made by the authority, or with the knowledge or consent, of James Kerr the father of William, for whose use this sui£ on the lease is brought.

Judgment reversed, and Venire facias de novo awarded.'  