
    SPANGLER against HUMMER.
    IN ERROR.
    Where hpon the facts, as given in evidence, the plaintiffs might recover, it is error in the court to charge the jury; “If the law is as laid down by the court, the plain tiff lias failed in making- out his case, and is not entitled to recover.’.’
    'Error to the District Court of York county.
    It was an action of replevin by Rudolph Spangler, against John Hummer, brought to recover grain, which the plaintiff claimed as the tenant of one Herbach, and which the defendant had taken from the ground where it had been raised by the plaintiff.
    It was proved that the grain in dispute Was grown on one hundred and thirty acres of land, of which, in eighteen hundred and sixteen, John Ziegler, died seised. On the first of January, eighteen hundred and sixteen, an order issued to Ziegler’s administrators, to sell this land: it was sold to John Hummer; one third of the purchase money to remain a lien upon the land, the interest to be paid to the widow, who was afterwards the wife of Peter Hcerdorf. Hummer sold to Hoffman,under whom Herbach came into possession about the year eighteen hundred and twenty-two.
    
      Peter Heerdorf and. loife brought an action of debt, in the District Court, on the lien, for the interest due the Widow of Zeigler against John Hummer, with notice to Jacob Herbach, terre-tenunt, and obtained judgment thereon. On this judgment the land was sold, on the twelfth of May,eighteen hundred and twenty-eight, to Peter Heerdorf, subject to the widow’s dower. On the sixth of January, eighteen hundred and twenty-nine, Peter Heerdorf articled to convey to John Hummer, and on the twenty-fourth of May, eighteen hundred and thirty, did convey the land to him.
    The plaintiff Spangler, proved, that Jacob Herbach remained in possession of this land. That during the Summer and Fall of eighteen hundred and twenty-nine, John Hummer, was frequently at Jacob Herbach’s house, eat, and spent evenings there; that Her
      
      bach, being destitute of horses, &c. in the fall of eighteen hundred and twenty-nine, prevailed on Spangler, the plaintiff, to put out, and seed one of the fields in wheat and rye. Spangler was to haul out the manure, find the seed, put out the grain, and crop it, for which he was to have one half the crop. The plaintiff complied with this agreement, and put out the crop. Spangler and Hummer both lived in the neighborhood, and were acquainted. The field put out joined the public road. While Spangler was putting-out the crop, with his own horses, Hummer rode by. One of the witnesses stated that Hummer had an opportunity of knowing Spangler’s horses. The field was three hundred yards from Herbach’s house. The plaintiff Spangler, proved by Peter Smyser, that Smyser told Hummer, in the fall of eighteen hundred and twenty-nine, that Spangler was hauling manure, and seeding one of the fields of Herbach. Hummer replied “it was better to have something than nothing.” The plaintiff proved that, in eighteen hundred and twenty-nine, Hummer' had issued a venditioni ex ponas, on a judgment which he had against one Hoffman, a form^ er owner of the land, and had the same land struck off to him at sheriff’s sale. That Herbach had filed exceptions to the sale, and that, in the fall of eighteen hundred and twenty-nine, it was agreed between the counsel of Hiommer and Herbach, in Hummer’s presence, that if Herbach would withdraw his objections to the sale, he should remain in possession of the land until the first of April, eighteen hundred and thirty. He did withdraw these exceptions, and the deed was acknowledged.
    In the summer qf eighteen hundred and thirty,.Hummer carried away the whole crop put out by Spangler, and this action of replevin was brought to recover one half of the'crop.
    • The court charged the jury — “The plaintiff has put his claim to, the grain, on two grounds: He contends, first, that Spangler- had put it in as tenant to Herbach, on the shares,and was entitled tó eiu ter, cut, and carry away his share, when it was ripe. On this we remark that Herbach had no legal right to lease the land to Spangler, nor could he, as landlord, convejr any right to Spangler, to enter, in the succeeding summer, and take away the produce, the seed of which he sowed in the fall of eighteen hundred and twenty-nine.
    
      2. The plaintiff contends that Hummer knew of an agreement between Herbach and Spangler, that the latter should put out the crop in eighteen hundred and twenty-nine, and have half the produce, that Hummer saw Spangler ploughing the land, and ryas told by Smyser that Spangler was hauling manure into this held, and Hummer replied “it was better to have something than nothing;”' and there being no evidence that Spangler was warned to desist, it is contrary to equity, that Spangler should be deprived of his grain.
    
      ' “On this the court observe, if the evidence was that .this agreeincnt was known to Hummer, and he, assented to it, or in any respect encouraged Spangler to plough, and sow this field, Hummer would be bound bjr it, and would be entitled to no more of the grain than the landlord’s share, and Spangler would be entitled to. recover his pert'on according to the agreement, the knowledge of Which was brought home to Hummer. But is there any evidence that Hummer knew any thing of such agreement. The court have scon none. There is evidence of the conversations with Smy ser, and that Hummer several times rode by the land when Spangler was engaged in the field, and that Hummer was often at Herbach’$ house, and on friendly terms with him.”
    
      “If then the law is as laid down by (he court, the plaintiff has failed in making out his case and is not entitled to recover.”
    
    A.verdict was given for the defendant and error was assigned; In the court charging the jury that the plaintiff had failed in making out his case, and was not entiled to recover, and that it was necessary to prove the knowledge and assent qf Hummer to'the agreement with Herbach.”
    
    The cahse was argued by
    
      Gardner and Lewis for the plaintiff in error.
    
      Evans and Durhie contra.
   The opinion of the court was delivered by

Kennedy, J.

The District Court in its charge to the jury, in this case, after noticing the grounds upon which the plaintiff’s counsel had contended for a recovery, and recapitulating some parts of the testimony, as well as suggesting the want of it to sustain the plaintiff’s claim, concluded by telling the jury that, “if then the law is as laid down b.y the court, the plaintiff has failed in making out his case and is not entitled to recover. ” This is complained of here as error, and it does appear to me too, not without reason. For it would rather seem from this part of the charge that if ai\y thing was submitted by the court to the jury, to be decided by them, it was the law, which the court itself ought to have decided; and that the facts of the case, which it was the peculiar province of the jury to have decided, without the controlling direction, of the court, were withdrawn from them.

It was the duty of the court to lay down the law to the jury, and although the court said “if the law is as laid down by the court,” thus seeming to imply a. doubt, whether it was so or not, the jury Were bound to receive the law from the court, and to'consider it as Correctly laid down, and we must presume that the jury did so. This form of submitting the law to the jury, where the court had laid it down correctly in their charge, would-not, therefore, I apprehend, be a sufficient ground for reversal. But here, the court Went further and told the jury that “the plaintiff has failed in making out his ease, and is not entitled to recover.” “Now this,” (as was said by this court in Jones v. Wildes, 8 Serg. & Rawle, 150,) “was a positive direction to find in a particular way at all events,and necessarily left nothing to the jury,” and therefore the judgment of the court below, was reversed.

If, however, as was’said in the case of Weidler v. The Farmer’s Bank of Lancaster, 11 Serg. & Rawle, 141, the state of the evidence and the facts in the cause had been such, that taking all to be true, the plaintiff would not have been entitled in law to recover, the judge of the District Court might have said as he did; because, then, the only question raised would have been one of law, which properly belonged to the court to determine.

But it appears, that among other things, parol evidence was given on the trial, of Herbach’s having made and filed objections to the sheriff’s Sale, under which the defendant claimed the land upon which the grain in dispute was grown; that Herbach was the tenant in possession of the land, at the time, and that under him Spangler, the plaintiff, had sown the land Upon the shares, and was to have one third of the grain, which was the part in dispute; that the defendant was told that the plaintiff was seeding the land at the time it was doing, and that afterwards the defendant agreed with Herbach,ihz.t if he would withdraw his objections to the sale, that he should continue in the possession of the land until the first of April following the sowing of the grain, and that Herbach acceded to this, and withdrew his' objections, upon which the sale was confirmed to Hummer, the defendant: and even previous to all this, some evidence was given of Hummer’s having been originally the owner of the land, that he sold it to Hoffman, and that Herbach came into the possession of it under Hoffman, and thus indirectly under Hummer himself. This evidence in some degree,to say the least of it, tended to prove that Herback, under whom the plaintiff cropped the land, and by his agreement was to have the grain in dispute, held the land quasi tenant to Hummer, the defendant, or by and with his consent, and that Herbaph was to have the way going crop, and the plaintiff, of course, his right, as a cropper, and it ought, therefore, to have been submitted to-Ahe jury, for their consideration, whether the facts seem so or not.

The judgment of the District Court is reversed and a venire de novo awarded.  