The second specification alleges that the court below erred in charging the jury as follows: “ The testimony in this case does not prove a lease and rent in arrear due to James Mc-Alarney, executor of George Longenberger, deceased, so as to justify the distress and to entitle the defendant to recover in this case.” This instruction was entirely accurate. The paper executed by W. A. M. Grier and James McAlarney, dated July 1,1878, is not, in form or substance, a lease, and does not justify a distress for the rent by McAlarney, as executor. The paper refers to a lease between the representatives of George Longenberger, deceased, and one J. A. Losee. This lease appears to have been offered in evidence upon the trial below, but is not printed in the appellant’s paper book. The only information we have in regard to it, is.the statement in the paper book of the appellee, from which we learn that it was a lease by the children and heirs of George Longenberger, deceased, to the said J. A. Losee, dated Jan. 80, 1874. How the appellant, as executor of George Longenberger, can sustain a distress under this lease, has not been made to appear. Under these circumstances, it was entirely proper for the learned court below to affirm the plaintiff’s second point, which asked for an *589instruction that the allegata and probata did not agree. This view of the case renders a discussion of the remaining specifications unnecessary.

Judgment affirmed.