Brown, Adm'r v. . the Commissioners of Washington

Rodman, J.

The case does not state the reason which induced the Judge below to reject the parol proof of the ■alleged contract of lease between the parties, and we are ¡somewhat uncertain what it was. He probably considered the entry of the contract on the books of the Commissioners as forming a written contract between the parties, in which the entry would be the primary evidence of the contract, and secondary would not be admissible until the absence of the primary was excused. We think this view cannot be sustained. The case states, indeed, that the entry was proved to have been made at the time of the contract; but it also states, somewhat inconsistently, that the plaintiffs were not present when the entry was made, and they do not appear to have had any knowledge of it before the trial. It seems to have been a memorandum of a past transaction made by the Commissioners for the information of themselves and their successors. As to the plaintiffs, it was res inter alios acta, and did not bind them. They ought to have been allowed to prove the .alleged lease in any lawful way; instead of which the Judge ■denied all other modes of proof but the entry.

It is said, however, that leases for more than three years Are invalid unless in writing; (Rev. Code, ch. 50, sec. 11) and that it does not appear that the alleged lease was not for more than three years; and that consequently it does not appear, as it must to entitle the plaintiffs to a venire de novot that they were wronged by the ruling of the Judge. The; Judge does not put his exclusion of the plaintiff's evidence on the-ground that the contract must necessarily be in writing-under the Statute, but on the ground that as it was in writing it could only be proved by the writing. The plaintiffs offered to prove a parol lease which might be good; it could only be; known whether it was good or not after the evidence was heard. It is not necessary for an appellant to show here that, he has a good cause of action, but only that he was prevented from developing his case by testimony, through an erroneous ruling of the Court. That we think sufficiently appears here-

Judgment below reversed.

Per Curiam. Venire de novo.