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.'