This suit was commenced at October term, 1853, being an action of assumpsit; damages claimed, $300.

The declaration in the first count was for grubbing and piling the brush on fifty acres of land in said county, and for cleaning done thereon by the said plaintiff for the said defendant, and at his special instance and request; and defendant promised to pay,

&c.; second count, general account for work and labor. Plea, general issue.

The bill of exceptions shows the following facts:

That the plaintiff, to maintain the issue on his part, produced as a witness Thomas Wier, who testified that plaintiff grubbed for defendant about fifty acres of land, in 1852 and 1853, finishing about the 15th April, A. D. 1853, being something over a year in doing it; that the work was worth ten dollars per acre; that he heard no contract about the grubbing; that the land on which it was done was taxed to Sarah Holmes, the defendant’s wife; that William White, defendant’s father-in-law, appeared to have possession of, and exercise control over, the land; that Stummel worked on the land after defendant returned from California, and that Holmes knew of his doing so. (Holmes admitted that he was the owner of the land on which the grubbing was done.) That, about a year after the land was grubbed, defendant built a house on it. On cross-examination he stated, that on the land there was between one and two acres in a ravine not grubbed; that he saw a written contract in relation to the grubbing in the plaintiff’s hands; [that it—the contract— was between William White or Holmes’ wife and a man by the name of Ferguson.] The evidence in brackets was objected to by defendant. Having been called out by the plaintiff, it was admitted by the court, and defendant excepted to the admission of the same at the time it was given. Witness further stated that Stummel called on him, showed him the contract, and got him to go and look at the work—grubbing—to see whether it was done according to the contract.

The defendant gave notice to the plaintiff, to produce on the trial a certain contract in writing, which is as follows:

“Articles of Agreement, made and entered into between William Stummel, of the one part, and Samuel Holmes, of the other part, witnesseth: That said William Stummel has this day agreed to clear, grub and pile the brush, all to be done in good order, on all the land south of the road running from Sandy Creek bridge to John Eoster’s, that William White bought of Edward Evans, to be done and completed by the first day of April, A. D. 1853; and that the said Samuei Holmes hath agreed to pay the said William Stummel two hundred and twenty-eight dollars for the same—fifty dollars when the work is one-half completed, the balance when done and completed. In witness, we the undersigned set our hands and seals, this April the 13th, 1852.

WILLIAM STUMMEL,

SAMUEL HOLMES.

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How this case has been treated — in progress