delivered the opinion of the court.

This Avas an action on the case in assumpsit.

The first count sets forth the indebtedness of the defendant, Jenkins, to the plaintiff, Whitehead, in the sum of $1400, for goods, &c. sold and delivered, and for certain lands leased and let by plaintiff to defendant.

The second count is more special, setting forth in substance, that one Jenkins had leased cértain specified lands to the plaintiff for a certain consideration, and for a long period of time;that his term not being expired, he sold the unexpired term to the defendant beloAv for a certain price; that the defendant, in consideration thereof, agreed to pay off and discharge the notes which the plaintiff had made and executed to his lessor, for said *160•consideration, money, or pay the plaintiff the same, averring that the defendant had not so paid, &c.

The third count sets forth the contract of lease, and promise to pay, &e. ' •

The fourth count is for use and occupation of land. The general issue was pleaded, with leave to give special matter in evidence—and on the trial of the issue joined, a verdict was rendered in favor of the plaintiff for $1680 -gfo. The defendant below moved for a new trial, because the verdict was contrary to law and evidence, which motion was overruled by the court, ■and a bill of exceptions, setting out the substance of the evidence, was taken by defendant, signed and sealed by the court.

It appears that Whitehead, the plaintiff below, filed a bill of discovery, setting out his claim and possession, as a lessee for ninety-nine years, of the land in question, his sale thereof to Jenkins, for the price of $4 T6s°v per acre for a Part> and $13 per ■acre for the residue, amounting in all to $1408, payable in equal installments, on the 21st November, 1837, ’38, ’39 and ’40—that he, Whitehead, executed to Jenkins, and delivered an instrument ■of writing or bond, to make the lease, but for want of paper at the time, Jenkins did not execute his notes for the purchase money, but promised to do so—and Whitehead calls upon Jenkins to produce his, Whitehead’s bond, and states that he, Jenkins, paid him at the time of the contract, between one and two hundred dollars, in part of the consideration, and that this payment is set forth in the written agreement or bond, which he made to Jenkins.

Jenkins answered, that Whitehead was not the lessee or proprietor of the land at the time, &c., but that E. G. Whitehead was the proprietor—that “ there was no writings drawn between' them, and at the time the contract was made, (if the same may be called a contract,) he agreed to pay for the land the same that it was bid off at, at the trustees’ sale ”—that the titles were to be made directly from E. G. Whitehead to him—that W. W. Whitehead did, a considerable time after said agreement, give him a receipt for a greater amount than that set forth by him—that he, Jenkins, refused to give his notes at the time, because he believed E. G. Whitehead could not make a good title to the land, nor W. *161W. Whitehead either—that he believed that the whole proceedings in regard to the sale of the land were void.

E. G. Whitehead was examined as a witness for the plaintiff below, and stated that defendant Jenkins’s farm or field lay contiguous to the land in question—that Jenkins had extended his farm over about twenty acres of said land, and possessed and cultivated it for about two years, and that the improvement and. clearing, made by Jenkins on this land, was of more value than the rent for the use and occupation.

Richard Small, a witness called by defendant below, testified that, some time in 1836, he was a justice of the peace, and held an election for trustees of the 16th section of T. 18 of R. 5 E. and heard defendant say he had a receipt for money from plaintiff.

W. Y. Collins testified as to an election of trustees for the 16th section—the lease of the land for ninety-nine years—that he heard defendant say he had bought some of the land from the plaintiff, Whitehead. That Jenkins spoke of a bond, or said Whitehead called it a bond, but that it was nothing but a receipt.

The weight of the evidence is clearly with the plaintiff below. The first link in the cháin of evidence, is the answer to plaintiff’s bill of discovery. The bill charges the fact, positively, that there was a contract of sale or lease of land; that a writing or bond was given by him to defendant, and calls for its production. The answer is evasive, sets up matter in avoidance, to wit, title in E. G. Whitehead, and does not produce the receipt or writing called for.

E. G. Whitehead is then called as a witness—proves possession of part of the land in defendant, Jenkins, but in a very vague and unsatisfactory manner. But it is strange that Jenkins did not call on the witness to prove that the title was in him, and not in W. W. Whitehead.

R. Small testifies as to his holding an election for trustees of the 16th section.

W. Y. Collins testifies as to the election of trustees, the lease *162of the land for ninety-nine years, and that he heard defendant, Jenkins, state that he had purchased part of the land of Whitehead, and of a writing which Whitehead gave him in the form of a receipt.

The'judgment of the court below, overruling the motion for a new trial, must be affirmed.