DISSENTING OPINION. said plaintiff, caused and procured the said rule and restraining order to be issued by the said Court of Chancery to wit; on the twenty-fourth day of August, A. D. 1899, to wit; at New Castle County, and such proceedings were thereupon had without the license, notice to, or knowledge, of the said plaintiff, in and concerning the said action, or Bill of Complaint, as by the records and proceedings thereof, in the said Court of Chancery more fully appear; and the said plaintiff further saith that afterwards to wit; on etc., the aforesaid rule and restraining order, directed to the said Sheriff of New Castle County, was duly executed in due form of law, by virtue of which rule and restraining order, the said plaintiff, was restrained, hindered and prevented, from putting and placing any building, structure, or material, upon the said lot and open space of the plaintiff for a long time, to wit; from the twentyfourth day of August, A. D. 1899, to the fourth day of October, A. D. 1899, at the County aforesaid, when, &c., at said last mentioned day, October 4, A. D. 1899, the said rule and restraining order was dismissed and discharged and the injunction bill dismissed, by means of which said several premises he, the said plaintiff, whilst he was so restrained as aforesaid, was not only greatly exposed in his credit and circumstances, but was hindered and prevented from performing and discharging his necessary affairs and business, and his timber, brick, mortar, wood and sand, for said dwelling house were destroyed and taken away from the premises, pending the restraining order, and he, the said plaintiff, lost the use, and rental of the premises during the time &c., he was restrained, and unable to build on said land, and the plaintiff was kept out of the possession of the said land and premises, and was forced and obliged to, and did, necessarily pay, lay out and expend a large sum of money to wit the sum of two hundred dollars ($200), in procuring and paying counsel and attorney fees to defend said suit in Chancery and also three hundred dollars in and about purchasing other material at an increased cost, including timber and bricks, sand, mortar &c., and by means of the premises DISSENTING OPINION. was greatly injured to the damage of the plaintiff of one thousand dollars ($1000), to wit; at New Castle County aforesaid." The charging part in the second count of the declaration was as follows: "yet the said defendants, contriving and wrongfully and unjustly intending to injure the said plaintiff in this behalf heretofore to wit: in the Court of Chancery of the State of Delaware, in and for New Castle County," *****❝6 on the twentyfourth day of August A. D., 1899, at New Castle County aforesaid, wrongfully and injuriously and without right caused and procured a restraining order in said Chancery action to be issued from and out of said Court of Chancery and suffered and permitted said restraining order and the proceedings to be thereupon had without right and against the will and consent of the plaintiff.” * *** * "That afterwards to wit: on the fourth day of October A. D., 1899, the said bill and the said restraining order were dismissed and discharged by the said Court of Chancery;" The third count was exactly similar to the above. The cause of demurrer relied upon by counsel for defendant as to each of the three counts of the declaration was that the same did not aver "that the said alleged action in the Court of Chancery of the State of Delaware was begun, or that the said rule or restraining order was issued maliciously and without probable cause." H. H. Ward, for defendant, contended that an action for damages for the issuance of a restraining order or injunction was exactly similar to an action for damages for malicious prosecution and that therefore the narr should aver that said restraining order was procured maliciously and without probable cause, and cited in support of the above contentions, the following authorities: 10 Ency. Pl. and Prac., 1119; Russell vs. Farley, 105 U. S., 433; Meyers vs. Block, 120 U. S., 206 (211); Robinson vs. Kellum, 6 Cala., 399; Asevado vs. Orr, 100 Cala., 293; Lawton vs. Green, 64 N. Y., 326 (331); Palmer vs. Foley, 71 N. Y., 106 (108-9); Mark vs. Hyatt, 135 N. Y., 306; Garton vs. Brown, 27 Ill., 489; 13 Ency. Pl. and Prac., 436 and 442; Wells vs. SYLLABUS. Parsons, 3 Harr., 505; Rhodes vs. Silvers, 1 Harr., 127; Anderson vs. Calaway, 2 Houst., 324. Chandler, for plaintiff, replied that he followed the form laid down in Chitty on Pleading, page 700, and cited 2 Saunders on Pleading, 652; 1 Saunders on Pleading, 242,-note 2. GRUBB, J.:-Do you agree with Mr. Ward, that this action is upon the same basis as an action on the case for malicious prosecution. Mr. Chandler:-Yes; I think so. The Court sustained the demurrer, and remarked that the form relied upon in Chitty on Pleading, page 700, was for an entirely different action. Demurrer sustained. WILLIAM Y. ELLISON vs. MATHA D. DOLBEY AND EDGAR S. STANERT. Replevin-Landlord and Tenant-Mortgage-Security for DebtSale on Levari Facias-Custom-Way-going Crop-Evidence. 1. In a suit by the off-going tenant against the purchase of the farm at sheriff's sale on Levari Facias, for said tenant's share of a wheat crop which had been gathered, threshed and sold by the new tenant under instructions from the defendants; testimony as to the cost of harvesting, threshing and delivering said crop, offered as going to reduction of damages, held to be inadmissible. SYLLABUS. 2. If the tenant was in lawful possession of the crop, and the defendants ousted him of that possession, and gathered the crop and prepared it for market, against his will, they did so at their own risk. If the value of the tenant's property was, against his will, increased by the labor and money of the defendants, the tenant is entitled to the value of such increased value. 3. The right to the way-going crop exists in favor of the tenant under the general custom in this State. In case of letting on shares, the tenant may, after the expiration of his term, return and gather the crop, and the landlord has no right to interfere with his possession. Until his share is separated, the landlord has no in. terest in the crop which can be taken in execution against him, except by laying an attachment in the hands of the tenant as garnishee. 4. The sale of land upon execution, whether upon a general judgment or a judgment upon a mortgage, does not immediately terminate a tenancy, before the expiration of the current year of such tenancy. 5. In this State a mortgage is merely a security for the paymeat of a debt or the performance of some other condition. The estate of the mortgagor in the land remains in him, and passes to his assignee, devisee or heir, subject to the lien of the mortgage. The mortgagee takes by the mortgage no title to the land, but merely a lien upon it, which upon his dying intestate, passes, not to his heir at law, but to his executors or administrators. (December 7, 1900.) LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting. John Biggs for plaintiff. William S. Hilles for defendant. Superior Court, New Castle County, November Term, 1900. ACTION OF REPLEVIN (No. 38, September Term, 1900), brought by William Y. Ellison, to recover the sum of $335.81; being the amount claimed, including interest, for 439 bushels of wheat at seventy-five cents per bushel, claimed as plaintiff's share, as tenant, of the wheat crop grown on a certain farm situated in Red Lion Hundred, New Castle County; said farm having been rented by the plaintiff from one William H. Morrow for the year STATEMENT OF CASE-OPINION. beginning March 25, 1899, and ending March 25, 1900, said farm having been purchased at Sheriff's sale, on January 26, 1900, upon a writ of levari facias upon a mortgage, by the defendant Martha D. Dolbey, who after obtaining a writ of possession, at the expiration of said term put Stanert, the other defendant, thereon as tenant, and instructed him to gather, thresh and sell the entire wheat crop, including the way-going tenant Ellison's share as well as the landlord's share, which was done and the proceeds paid to her, she having refused said way-going tenant permission to come the said premises, to gather, thresh and deliver his crop, as the said tenant claimed he had a right to do. The further facts, as admitted by counsel, are stated in the charge of the Court. upon The pleas were non cepit, cepit in alio loco, property in himself, property in another, and property in themselves. When the plaintiff had rested, the witness John C. Stuckert, who was admitted to be an expert as to the cost of harvesting, threshing and delivering wheat, was produced on the part of the defendant and asked by Mr. Hilles the following question: "What, in your opinion, would it cost to harvest, thresh and deliver the wheat grown on the thirty-five and three-quarter acres, on the farm in question in July, 1900?" This was objected to by Mr. Biggs as irrelevant and immaterial. Mr. Hilles stated that the evidence was proper as going to reduction of damages. SPRUANCE, J.:—We think the question is not pertinent. If this plaintiff had a right to the possession of any of this wheat, he had a right to the possession of the whole crop, and the landlord had no right to touch it. In other words, the landlord at that stage had no right whatever to the possession; that is, supposing that the tenant had the right to the way-going crop, and supposing this mortgage was out of the way. Now if it is true that the tenant had the right to the possession of the crop and the right to |