The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1866-02-01
Court of Appeals.
Reported specially for the Register
MONDAY, Jan 90. 1866.

MONDAY, Jan % 1866.
AIstorpheus wenringer lFrom Harrison
John Wilson, use &c.
Points in case are as follows
lst The Court (below) erred III ad-
Judging demurrer to plea in abatement
insufficient.
Cd. Error in overriding dswurrer to
declaration.
Sd. In fuding issue upon the plea Of
nm tel record for the Plaintiff as there
was no eve of the decree dissolving in-
junction.
Judge Lee for defendant in error
Isaac E, Kelly From Ohio County
William Todd }
L. Jacob for appellant
This was an action OF Groyer for two
thousand sheaves Of wheat; and the de
PENDANTS served i'll their defense plead
not gnilty. There was Judgment in
favor of A Wilson Kelly and Aaron
Kelly, and against Isaac Kelly A. Will
son Kelly had leased to plaintiff Todd,
by contract, under seal, for three years,
large farm at cash rent OF five hun
dred dollars per year, commencing on
the lst day OF April, IsGI, and ending on
the 3Ist day Of March. 1864, and that, At
the expiration of the lease. petitioner
became the incoming tenant of said
farm that, in the fall before the lease
expired. said Todd sOwed one of the
fields in wheat, and that petitioner cut
and gathercd the same wheat the next
harvest 1t Will also be seen 10y the
said agreement OF lease, that said Todd
was restricted in the use Of said farm.
and that the manner in which he was to
cultivate the same was agreed upon be-
tween Todd and his lessor, A Wilson
Kelly. 1t was agreed, among other
things, as the bills OF exceptions show,
that said plaintiff Todd was, the second
wear Of the lease, to cultivate the
meadow north of the woods pasture, in
corn. and in the following spring was to
SOW it in barley, aud in the fall of the
same year llast year Of the lease) as to
sow il in wheat and timothy and that
he did SOW it in wheat, and your peti
TONER. as incoming tenant cut and
gathered the wheat and that under this
agreement the plaintiff claimed the
wheat was his property. though HE lease
terminated on the 3ist day of the preYi-
ous March, and though there was no
provision in the lease giving him the
wheat
1t will also be seen by tEo GTst I'LL Of
evceptions that the plaintiff, to sustain
his title to the wheat, produced in evi
depce before the court and jurT the said
agreement cflease and that your peti.
toner mo-ed the court to c0nstrue said
agreement, and 10 decide "hether under
1.-THE wheat belonged tc tie plaintiff
and that the court declined TO do 80, and
decided that it was question Of fact
for the jury TO decide on the eTidelce
vbether the wheat was scwed for the
plaiutit or defendant
Ard the second bill u exceptions
shows that your petitioner also moved
the court to instruct the jury that
though the plaintiff did prove that he
soTed the wheat during the fall pEeced-
inc the March when tie lease expired
ana that tbs defendant aid as incoming
tenant reap aud tsks tbs wheat. get the
seid agreement aud lease aid rot give
/ tbe ulaintiI the wheat or tie night to
raan the same, and the same 70 recover
in this suit. but that the Court also
refused 10 give this instruction
And vour petitioner now assi.us for
error
Secondly That the Court erred il de
ciding that II was question Of fast for
the Jury.
Thirdly That it was error to leave II
n the iurv 10 decide whether the wheat
vas sowed for the plaiutiif or for the de
fsndsnt. Whether the wheat bslonged
to the plaintiff depended Oh the written
Contract. for there was one, and il was
the proper d@ts and province Of the
eourt 80 expouDd it. Under the agree