Ream v. Harnish

The opinion of the court was delivered, by THOMPSON, J. There are not near as many questions raised by the assignments of error in this case as appear to be discussed in the argument of the plaintiff in error. We will content ourselves with a review of the former, leaving the latter for a more appropriate occasion. 1. We discover no error in the treatment by the court of the plaintiff in error. He, jointly with the other defendants, pleaded to issue, and prayed no instructions, on the ground that the evidence did not implicate him. As his execution was satisfied out of the property sold, for w'hich this action of trespass was brought, I presume the court, hearing nothing to the contrary, took it for granted that the defence was joint, for the benefit of all, and is not therefore to he corrected for not doing that which it was the duty of tire party (if he wished to place himself on a footing different from that which he appeared to be standing upon) to request to be done. He treated it as a joint trespass, and the court was not wrong in taking the same view. 2. The declarations of Jacob Harnish are not of a character to estop him; they were not made to any of the defendants: consequently they were not encouraged nor induced to do the acts they did by reason of what he said. Nor is there a shadow of evidence that they acted upon the faith of anything he said, [379] or were at all misled by it. The court committed no error in what is here assigned for error. The evidence fell far short of bringing the matter alleged as an estoppel within The Commonwealth v. Moltz, 10 Barr 527, or any of the numerous cases since ruled on that question. 3. The court were right in charging as they did, that if the plaintiffs were entitled to recover, they were entitled to recover the full value of the grain. No question about the tenancy is raised by the record. That, question was submitted to the jury, and they have found in favour of the plaintiffs: that it was a tenancy, and the rent reserved was a share of the grain to be delivered, in the bushel, at the mill. Until delivered by the tenants, the landlord had no title to any part of it. It was for the tenants to sue for and maintain their right of possession in the whole, until after delivery of the landlord’s share. Rhinehart v. Olwine, 5 W. & S. 157, decides this. These are the only questions raised by the assignments of error, and the only ones upon which we have any authority to pass; and, as we discover nothing to correct, the Judgment is affirmed.