1819.

My strong impression is that, if the date of the Writ MARCH, was really material to the party, (as, from the certificate

V

of the Clerk relative thereto, but which is no part of this Taliaferro record, I incline to think it was,) and if the party, by Gatewood. the neglect of the Clerk, in not giving the whole record from the emanation of the Writ, was taken by surprise, (as I think also probable,) her remedy, when on the argument of the demurrer this defect appeared, was a motion for a new trial to the Court who tried the cause.This course surely would have been more proper, than to have insisted, in that Court, on a defect in her own evidence as a ground why the Court should not have proceeded to a judgment on the demurrer.

If the party did not choose, however, to insist on either of these matters in the County Court, or to urge the latter in the Superior Court of law, was it the duty of those Courts, ex-officio? or is it within the power of this Court, when the point is made, to say that this defect in the plaintiff's own testimony renders it impossible that judgment should be given in the case?-What is the object and nature of a demurrer to evidence?—The object of it is, as in a special verdict, or case agreed, to submit the law arising upon the facts of the case to the Court, and not, by blending it with the fact, to submit the whole to the Jury.-The demurrer too has this advantage, that, whereas the Jury may not agree to find a special verdict, the case may be withdrawn from them without this hazard.-The nature of a demurrer tho', is not to invest the Court with the trial of the fact.-The existence of the facts in proof to the Jury, or such as they may fairly infer from the evidence before them, must be admitted; and then the demurrer to evidence is, in its nature, like a demurrer to a declaration or plea. (a)-In the latter case, the demurrant says, admitting the truth of what is stated in your declaration or plea, you have no cause of action, or your defence is not good.—The party, however, whose declaration or plea is thus demurred to, would not be heard to say that the Court could not give judgment in the case because the declaration or plea shews that possibly a cause of action or a good de

(a) 2 E

Bl. 206.

MARCH,

1819.

V.

fence may exist, altho' it is not stated so as to avail against the demurrer.-So, the party demurring to the Taliaferro evidence says, admit this to be true in it's full extent, yet it is insufficient in law.-Can the party offering the evidence say, true it may not be sufficient, but I do enough to shew that there is other evidence which may be sufficient, and therefore the Court can not give judgment against me?

(b) Dougl. 133.

In Gibson & Johnson v. Hunter, 2 H. Bl. 206, (to which I would solicit the attention of the Bar, as affording the clearest and most unobjectionable course to be pursued in relation to demurrers to evidence, a subject which, in this country at least, is one of no little perplexity,) it is said that, if a matter of record, or other matter in writing ❝be offered in evidence in maintainance of an issue join"ed, the adverse party may insist on the jury being dis"charged from giving a verdict, by demurring to the evi"dence, and obliging the party offering the evidence to

join in demurrer."-He is obliged to join in demurrer, "because there can not be any variance of matter in writ“ing.”—“ Parol evidence too is sometimes certain, and "no more admitting of any variance than a matter in "writing; but it is also often loose and indeterminate, and "often circumstantial." The case then goes on to shew how evidence of this latter description, and even where it is merely circumstantial, may be demurred to; viz. by the demurrant admitting the existence of the fact, the evidence of which is loose and indeterminate, or of that which the circumstances offered in evidence conduced to prove.

In this Country, according to our practice, and also, as I understand, in England, (b) when the evidence is such as certainly to warrant a jury in inferring a particular fact, the Court will consider such fact as admitted by the demurrant; but certainly the better plan is that recommended in the case from Henry Blackstone above cited, to have the facts, arising from the inferences and circumstances, stated and admitted of record, under the control of the Court, who will see that nothing shall be

insisted on, which the Jury might not properly infer from MARCH, the facts before them.

1819.

V.

Gatewood.

The evidence in that case was of this last description, Taliaferro that is, circumstantial; and the Judges certified to the Lords, that it was not competent for the party to demur, and discharge the jury from giving a verdict, without distinctly admitting upon the record every fact and every conclusion which the evidence given for the plaintiff conduced to prove.

In the case before us, however, the evidence is of two kinds: first, the record: to this the defendant could not object as improper to go to the Jury: had he made the objection to it, now set up, and the plaintiff had waived the benefit of the proceedings prior to the filing the declaration, and had chosen to rely on such a record as would clearly have been a full record in a Court of error, the objection could not have been sustained. It was then legal evidence, and was offered to the Jury. The second kind of proof was parol; the assignment was proved by a Witness; and this is admitted.

What was the defendant to do? He must either submit both law and fact to the Jury, have a special verdict found, or demur to the evidence. He chose the latter. This he had a right to do. If he had not done so, the plaintiff had a right to submit the law, and the facts thus in proof, to the Jury, and the Court could not say that the case should not go, on those proofs, to the Jury, because, peradventure, the party might make his proofs better. If the Court, in that stage of the case, could not have prevented the plaintiff from proceeding against the defendant with her proofs so offered, or if the plaintiff, in that stage of the cause, could not have prevented the defendant from availing himself of the want of sufficient proof of diligence in prosecuting that suit, and obtaining a verdict in his favour on the evidence so offered, and if her only remedy would have been to move for a new trial, (on the ground of surprise,) after the verdict; neither could she, then or now, prevent the defendant from demurring, and having the full benefit of that demurrer, unless by a motion for a new trial, which, before

1819.

MARCH, judgment on the demurrer, it might have been competent for her to make, as above suggested.

If such must have been the course in the Court trying the cause, the same must be pursued here; with this exception, that such motion for a new trial cannot be made here.

This question, however, being in the opinion of the other Judges with the appellee, in consequence of which a venire de novo must be awarded, no opinion will be given on the demurrer.

Decided, March 31st, 1819.

1. Upon a

tition of

son who

Alexander's Heirs against Coleman and

Wife.

A Bill in Chancery was exhibited in the County Court Bill for par- of Loudoun, in August 1795, by James Coleman, jr. and land; a per- Hannah his wife, against Johnston Cleveland, George Cleveland, John Hough and John Alexander, for partition claims part thereof by of certain lands devised by James Cleveland, father of adverse title, the female plaintiff and of the defendants Johnston and being made one of the George Clevelands; also, for the purpose of obtaining from the defendant Alexander, a surrender of title deeds, for the purpose of ob- and a conveyance of part of the lands in question, which taining a sur- he claimed by adverse title; and for general relief.

defendants,

render of

title deeds,

and a convey

In September 1808, the County Court, on consideraance of such tion of the Bill, Answers," Depositions and Exhibits in part, from "the case, ordered and decreed, that certain Deeds of

him. if the

Court decree against him, that the said deeds "be set aside and declared void, and "that the title of the complainants to the lands in the bill mentioned, be quieted;" and, by consent of parties, the cause be continued as to the other defendants: quære, whether such decree be final, or interlocutory as to him?

2. Quære, whether an appeal cannot be taken as of right, from a decree which is final as to one of the defendants, whose claim is adverse to that of the plaintiffs and all the other defendants as to whom the cause is continued in Court?(1)

(1) Note. As to the right of appeal from interlocutory decrees, see Acts of 1815, c. 8. § 1, 2, 3; 1806, c. 23. § 2; R. Gode of 1819, c. 66. § 55, 56, 57. Vol. 1st p. 207-8.

MARCH,

1819.

V.

Wife.

"Lease and Release from William Elliott to John Hough, "from John Hough to Samuel Butcher, and from John "Butcher the heir at law of Samuel Butcher to the de- Alexander's heirs "fendant John Alexander, so far as the same were in"tended to convey any title to the land in the Bill men- Coleman and ❝tioned, to the several grantees, be set aside, and de"clared void, as to the effect aforesaid; and that the "title of the Complainants to the lands, in the said Bill "mentioned, be quieted: and, by consent of parties, it was ❝ordered that the cause be continued as to the other defen"dants." From which order and decree, the defendant Alexander appealed to the Superior Court of Chancery for the Richmond District.

On the 20th of February 1811, Chancellor TAYLOR pronounced the following Opinion and Decree in the

cause.

“In Mackey v. Young and Wife, it was my opinion "that, where a decree took from one, and gave to ano"ther, the whole, or any part of the subject in contro"versy, it should be so far regarded as final, that an "appeal might lie to this Court; but the Court of Ap"peals decided otherwise; and therefore the appeal in "that case was dismissed: and, for the same reason, the "appeal in this case must be dismissed: for this is not "a stronger case than that of Donald against Nash, "which went from this Court to the Court of Appeals. "In that case, Nash filed his Bill in this Court against "Donald, a foreign debtor, and attached his effects or "debts here, in the hands of several garnishees: the "cause was finally heard, and decree against Donald, "for the amount of the plaintiff's claim, with directions "to all the garnishees but one, to pay the sums in their "hands towards satisfaction thereof; and liberty was re"served to the plaintiff, in the event that it should be "necessary, to resort to this Court against the other "garnishee. This Court, it is admitted, may grant ap"peals in some cases from interlocutory decrees; but the "Judge in vacation granted an appeal to Donald; and the "Court of Appeals, going upon the ground that the de“cree, because of the reservation, was interlocutory, and