Judgment was entered in the Supreme Court, March 8th 1875,

We cannot discover what many of the matters assigned for error had to do with the issue tried in this case. The single bill and mortgage were given as a security for the performance of the covenants in the agreement for working the mines. The judgment on the mortgage was confessed under the stipulations in the agreement, and upon affidavits setting forth the breaches alleged. The issue was to determine whether anything was due and owing on the mortgage, and. this depended upon the *252breaches of the covenants assigned. Hence, the real question was, whether the defendant, A. C. Miller, had broken his covenants, or any of them, so as to entitle the plaintiffs to judgment, on the security held for their protection. The evidence was clear and beyond dispute, that plaintiffs broke the covenant to be performed on their part, by omitting for more than the stipulated time, to pay the sums they were bound by the agreement to pay to the defendant, Miller, which, by the terms of the agreement, gave him the right “to treat the contract as forfeited.” This took place long before the sheriff’s sale of Miller’s interest and estate in the colliery, and he not only gave notice to Maize, as the president of the Columbia Coal Company, but to the officers in New York, and forwarded monthly statements of the balances against the company.

Under these circumstances the sheriff’s sale could not be set up as a breach on the part of Miller, who thus had a right to treat the contract as forfeited by reason of the plaintiffs’ precedent breaches, continuing over eight months. And if the plaintiffs relied on the sheriff’s sale as a breach, it is not easy to perceive how the fact of collusion, in effecting it, could affect the issue being tried. The breach then would consist in the fact of the sale, and not in the means of effecting it. If, by collusion or fraud, the force of the sale was destroyed, it might be argued against the plaintiffs, that there being no legal sale, there was no sufficient breach. But in this issue the sale was not really involved, for the clear and uncontradicted evidence was, that the company had not performed its own covenants, and therefore had released the defendant Miller, and enabled him to treat the mining contract as at an end.

Judgment affirmed.