
    LEAVITT v. MURRAY.
    Laud leased for gross rent — quantity—evidence—division of-the court — error.
    Where land has been leased for rent in gross upon an estimate of quantity, it is incompetent for the tenant to show a less quantity of land than \vas#estimated, to reduce the rent, without the agreement was to reduce in that event.
    If evidence is admitted by the division of the court that ought to have been-rejected, the judgment will be reversed on error.
    Error to the Common Pleas. Leavitt brought assumpsit in the court below upon a written lease without seal. Issue was taken on non assumpsit with a notice of setoff. On trial,-the plaintiff read the lease in evidence, which was for a piece of ground estimated to contain ten acres at $50, and proved that the defendant entered into the premises and enjoyed them. The defendant then offered to prove that the quantity of land in the tract was less than ten acres. To this evidence, the plaintiff objected, and the court being equally divided in. opinion, it was admitted, and judgment given for the defendant. It is alleged for error, that the evidence ought to have been excluded.
    
      Knapp and Whittlesey, for the plaintiff,
    cited 2 Cranch R. 10,29 j 9 Wheat. R. 819.
    
      Giddings and Wade, contra.
   By the Court.

The parties in this case reduced their contract to writing, and by that they are bound, unless there was fraud or mistake — there is no pretence of either. The contract shows that the parties did not know exactly the quantity of land — they estimated the quantity and agreed upon a certain rent in gross, not by the acre. It was incompetent for the defendant to prove there was. a less quantity of land, without showing also an agreement to deduct, if that was found to be the case. The evidence, therefore, should have been rejected. The judgment and proceedings since the issue are reversed, and the cause remanded for further proceedings.  