delivered the opinion of this court.
In this case, it is the opinion of this court, that the county court properly refused to give the instruction asked by the plaintiffs’ prayer, inasmuch as it omitted several material facts, of which testimony had been offered, and which were essential to raise the question on which, by the prayer, the decision of the court was invoked.
We therefore affirm the judgment; but as it does not appear to this court, that the substantia,! merits of this case are determined b.y the judgment, the clerk of this court is directed, under the provision of the act of 1830, ch. 186, to return the transcript of the record to the clerk of Allegany county court, with a writ of procedendo.
JUDGMENT AFFIRMED AND CAUSE REMANDED, WITH PROCEDENDO UNDER THE ACT OF 1830, CH. 18.6,