
    William B. Dozier vs. Anstill & Marshall.
    If, after issue joined, and the cause has been submitted to a jury, the defendant demurs to evidence in a matter of writing, it is necessary that the plaintiff should join in it; and if the court, without the plaintiff’s joining in the demurrer, withdraws the case from the jury, and renders judgment on the demurrer, it will be error for which the judgment will be reversed.
    The recital in the record that the joinder in the demurrer existed, cannot supply its place in the record..
    ERROR from the circuit court of Jasper county; Hon. Henry Mounger, judge.
    The record in this case is very imperfect; but it substantially discloses the following state of facts, to wit: That Jeremiah Anstill and Benjamin F. Marshall, copartners, under the firm and style of Anstill & Marshall, sued William B. Dozier in action of assumpsit, on a promissory note for $425 81, to the November term, 1842, of the circuit court of Jasper county. At the return term the defendant pleaded the general issue. Upon the trial the defendant filed a demurrer to the evidence, in the following words and figures, to wit:
    
      “ Stale, of Mississippi, i gs Jasper County, )
    
    
      “In Circuit Court, November Term, 1843.
    “Anstill & Marshall vs. William B. Dozier.
    “ Afterwards, on the day and at the place above contained, comes as well the above named Jeremiah Anstill and Benjamin F. Marshall as the above named William B. Dozier, by their attorneys, and the jurors of the jury, whereof mention is above made, being called, likewise came, and being chosen, tried, and sworn to say the truth of the premises within contained, and as to the issue above joined between the said parties, the said plaintiffs, Jeremiah Anstill and Benjamin F. Marshall, show in evidence to the jury aforesaid, to prove and maintain the issue joined on their part, the following instrument, in writing, to wit:
    
      “ ‘ $425 81. One day after date, I promise to pay Mess. Anstill & Marshall the sum of four hundred and twenty-five dolls. for value reed.
    
      “ ‘ Paulding. Jasper County, Miss. Juki 27, 1840.
    “ ‘ Will. B. DozieR.’
    “ And the said William B. Dozier says that the aforesaid matter to the jury aforesaid, by the said plaintiff, is not sufficient in law to maintain the said issue joined as aforesaid, on the part of the said plaintiffs; and that he, the said William B. Dozier, to the matter aforesaid, in form aforesaid, shown in evidence, hath no necessity, nor is he obliged by the law to answer; and this he is ready to verify. Wherefore, for want of sufficient matter in that behalf, to the jury shown in evidence, as aforesaid, the said William B. Dozier prays judgment,” &c. To which demurrer the plaintiff filed the following joinder, or replication: “And the said plaintiffs, for replication to said defendant’s plea, say, that they ought be precluded from having and maintaining their against said defendant, by reason of anything injjsáíd plea alleged, because, .they say, that the matters to the j^Jy^njíSEj plea alleged, are sufficient in law to maintain the issue join as stated in said plea; wherefore they pray jud®n|^¡^ The court withdrew the case from the jury, and renated juclg merit in favor of the plaintiffs. To reverse which juc the defendant now prosecutes this writ of error.
    
      J. Heyfron, for plaintiff in error.
    In this case it appears that the issue was submitted to a jury, and that the plaintiff in this court, demurred to the evidence. The record shows an attempt to join in the demurrer, but in point of law it is not a joinder in demurrer. It commences by saying that the matter in the plea alleged is not sufficient to preclude a recovery by plaintiffs. It does not appear on its face to be a joinder in a demurrer to evidence. And until there was a proper joinder in demurrer, the court had-no right to discharge the jury from the trial of the issue. Both parties must concur in the prayer that the jury be discharged. And if either party refuses to join in such a demurrer, when the same is properly tendered, it is a discontinuance, for which a non pros. or default, might be entered. This case stands as at common law, unaffected and unassisted by . any statute of jeofails. None of those statutes extend to a judgment on demurrer to evidence.
    The court below had no power or authority to give final judgment in an action of assumpsit, which is for damages, without the intervention of a jury. By the common law it could not be done. And our statute, allowing final judgment on promissory notes, &c., is, we think, confined to demurrers in law, and does not extend to this case.
    
      G. Calhoon, for defendants in error.
    There is no such demurrer to the evidence in the record as the law recognizes, although three attempts seem to have been made at it; two by the clerk, and one by the counsel. Had there been any objection to the admissibility of the note as evidence, the plaintiff in error could not avail himself of it, by demurrer to evidence. Buller’s Nisi Prius, 314.
    If the note had not have been copied in the record, this court would presume that the note mentioned in the declaration accompanied it, and that the court below gave judgment upon it, for neither the record nor the demurrer states that the note copied in the record was all the evidence in the cause. The plaintiff in error cannot object here that the court below did not treat his demurrer as a nullity, and send the cause to the jury, and so the question cannot arise here, whether it would be error in a court to discharge a jury after issue and proof adduced, and give judgment on the writing sued on, though I think it clear it would not. It is not only proper, but the common practice, to discharge the jury on a demurrer to evidence. See the authority above quoted. And the question, and, 1 take it, the only question is, whether the court erred in not ordering a writ of inquiry after overruling the demurrer, and in giving judgment on the note? In other words, can the court assess damages on a writing, where the amount is certain ? Nothing is better settled than that it can. Renner et al. v. Marshall, 1 Wheat. 215; 2 Saund. 107, n. 2; Dicken v. Smith, 1 Lit. R. 211. See 2 Pirtle’s Dig. 30, for reference to other authorities.
    
      J. Heyfron, in reply.
    It is contended that there is no such demurrer to the evidence as the law recognizes. If this be true the judgment must be reversed, and a venire facias de novo awarded. The general issue is in the record. And if that issue was not properly withdrawn from the jury, it remains undisposed of, and the case must be remanded. We will not raise the question here, whether or not the evidence offered was sufficient to sustain the issue on the part of the plaintiffs in the court below. We demurred, and that which we complain of is, that the court gave judgment without there being a legal joinder. We could not have demurred to the joinder. And that it is grossly defective by the common law, cannot be doubtecl. And inasmuch as no statute of amendments cures the defect, it still remains, and is therefore error.
   Mr. Justice ThacheR

delivered the opinion of the court.

Action of assumpsit upon a promissory note. Plea von as-sumpsit. Upon the trial, the plaintiff below offered in evidence a promissory note, to which evidence the defendant demurred. The plaintiff does not seem to have joined in this demurrer. The record, which presents the case irregularly, contains, just following the plea of non assumpsit, something that seems to relate to the demurrer to the evidence, but which bears more resemblance to a replication to a special plea. It purports to be a replication to a plea. The circumstance that the record asserts that a joinder existed to the demurrers, cannot supply its •place in the record. The demurrer to the evidence is probably erroneous, but the plaintiff took his judgment under it, and therefore treated it as a sufficient demurrer. It being a demurrer to evidence in a matter of writing, it was necessary that the plaintiff should join in it. Gibson v. Hunter, 2 H. Bla. 187. The consequence is that the court erred in withdrawing the case from the jury, and the judgment of the circuit court is therefore reversed.

The cause is remanded for further proceedings, it now standing upon the demurrer to the evidence, as filed by defendant below.  