By the Court.
Benning, J.delivering the opinion.
The Act of 1827 gives the landlord a remedy by which to-recover possession, but gives it only in cases in which the “lease” has expired. He has to make oath that “the lease or term of time for which the land was rented, has expired.” The Act was made for cases arising on the expiration of leases.
*536•. .Against the' proceeding: which may > follow - this .affidavit,, fhe.tenant may. defend himself by-swearing thafehis.lease ,“ps hot .-expired,” or “tha-t he -does -not. hold, either - ¿by lease nr rent” - from the- plaintiff; ’and if he does so,- th'e proceedings-are to be returned to Court, and “ the fact” is “to be there fried.’’" (Cobb's Dig. 901.)
■In the present-case,, the oath .of tho. tenant -was, .-that -hé1 was “not the-.lessee-or-tenant” ofthe plaintiff’s-intesfate.-
- Such an' oath, being .put in', what< was-the “•fact” to. be tried?'. Manifestly this: whether there-was any-lease.or-no.t>To show the tenant á lessee, it would have; been necessary to showhiniapartyto.alea.se — to show-a lease-,-
And to show, a lease, it is necessary..to'show with-mpre or less of certainty the terms of the lease.- . ;
And this is no more than ;what- the Court .told the Jury, in the present case,'it was necessary for théplaintiff to show.'' ■
.' We think, therefore, that the charge of the Court was not •wrong. ■ • ■ - . • ■ ,;.. ' n
Nor'was the verdict contrary to- the evidence. There was no evidence, whatever, of any lease, '
And what was- offered as newly discovered evidence, would not have shown any. lease. In truth, however, that was merely, cumulative. - . . •. ..'
We affirm the judgment of the Court below.