
    Taliaferro v. Gatewood.
    Decided, March 27th, 1819.
    s. Demiwrei* to Evidence —Coiatrol of Coatí over Proceedings TSiereispom. — The whole proceeding upon a demurrer to evidence, is under the control of the Court before whom the trial is had. If, therefore, by mistake or otherwise, a material fact, on which the point in issue depends, and which tile Court judie?,Uy knows to exist, be omitted ill such demurrer, it ought to be set aside, as too uncertain for a judgment to be, given thereon; and this, upon an appeal taken by either party.
    2. Bond— Action by Assignee against Assignor -Due Diligence- Evidence. — In an action by the assignee against the assignor of a bond, the point in dispute being whether the assignee has used due diligence in suing the obligor; if the plaintiii produce a transcript of the proceedings in a suit which he brought against the obligor, shewing the time when the declaration was filed, but not the date of the Writ; and the defendant demur to the evidence; the Court not interfering nor requiring a copy of the Writ to be produced; such demurrer should be set aside, and a venire de novo awarded.
    Anne Gatewood brought assumpsit in the County Court of Caroline against John Taliaferro; setting forth in her declaration that the defendant, on the 22,d day of October 1804, assigned to her a writing obligatory, of a certain John Baylor to 1 he said defendant: — (describing it;) that, by the said assignment, the defendant became bound to the plaintiff, that, in case the amount of the said obligation could not be recovered of the said John Baylor, she the said plaintiff using due diligence to recover the same, that then the said defendant should make good the same, and pay the amount thereof, to the plaintiff:— that, subsequent to the said assignment, (without saying when,) she instituted a suit thereupon in the District Court of Fredericksburg, which she duly prosecuted until the 11th day of May 1808, when, the said John Baylor having departed this life, a scire facias was ordered to be issued against Thomas R. Rootes administrator with the Will annexed; and the said scire facias was regularly returned executed; that, afterwards, at the final hearing and trial, it was found by the Verdict of a Jury that the said Thomas R. Rootes had fully administered, and had not then, nor on the day of the commencement of the said suit, nor at any time thereafter, any assets to pay the said debt; and therefore it was considered by the Court that the plaintiff take nothing, &c; by reason of which premises, the defendant assignor of *said obligation became bound to pay to the plaintiff the amount thereof, with Interest and the costs of the said suit; and the said defendant, being so liable, did in consideration thereof assume, &c.
    At the trial, on the plea of non assump-sit, the plaintiff, to support the issue joined on her part, offered a transcript of the proceedings in the said suit, brought by her, as assignee of the writing obligatory aforesaid, against John Baylor the obligor; which transcript shewed that the declaration in that suit was filed on the 29th day of April 1807; but the date of the Writ previously issued did not appear. The defendant demurred to the evidence, and spread on the record the said transcript, the writing obligatory, and the assignment, which was proved to have been made by the defendant. The plaintiff joined in demurrer; and the Jury found a conditional verdict.
    The County Court entered judgment for the defendant, which, upon an appeal to the Superior Court of law, was reversed; that Court being ‘ ‘of opinion that the as-signee of the writing obligatory in the record mentioned did use due diligence in en-deavouring to recover the amount thereof from the obligor and his representative by a judicious mode of prosecution ; and that a want of due diligence could not be imputed to the assignee from a failure to sue the obligor at an earlier period; seeing that the assignor did not request or call upon her to commence such suit, and that no evidence is produced by the assignor Tal-iaferro to shew that an earlier prosecution would probably have been more effectual than the one which was carried .on by the said assignee.”
    The Superior Court, for these reasons, entered judgment for the plaintiff; to which the defendant obtained a writ of Super-sedeas from a Judge of this Court.
    Stanard for the appellant.
    Call for the appellee.
    
      
      lOciüiFWirreB* to Evüderace — Cdswirol ©1 Gotiri over Pi1©-eoedSsDgs ThcreajpoMi.--When the plaintiff gives evidence to the jury and says he rests liiu case, and the defendant tenders a demurrer to the evidence ñiveií to the jury, the court mav, in the exercise of sound discretion, permit the plaintiif to give additional relevant evidence to the jury, when U te satisfied chat the failure to introduce it was owing to mere inadvertence of counsel or other suí'ñcient cause, and refuse to comped the plaintiff to join hi the demurrer to the evidence given to the jury "before die additional evidence was admitted. Hunter v. Snyder, 11 W. Va. 213; Burns v. Morrison, 36 W. Va. 426, 15 S. E. Rep. 63, both citing the principal case. The principal case is also cited on this subject in Green v. Judith, 5 Rand. 29; Wilson v. Bank of Mt. Pleasant, 6 Leigh 572; Fairfax v. Lewis, 11 Leigh 241; Peabody Ins. Co. v. Wilson, 29 W. Va. 535, 537, 542, 2 S E. Rep. 992, 393. In Green v. Judith, 5 Rand. 30. Judge Cabell said that although he con • curred with the majority ol the court in the principal case, yet, on subsequent reflection, he was inclined to doubt the correctness of the decision in that case. See generally, monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
   JUDGE) ROANE)

pronounced the Court’s opinion.

This is an action brought by the appel-lee, as assignee of a bond, against the assignor, on the ground of not being able to recover it’s amount from the obligor, altho’ *she had used due diligence to recover it from him. Issue was joined on the plea of non assumpsit ; and the question whether due diligence had been used or not, is directly in issue between the parties. It is that question upon which the decision of the cause is entirely to turn.

At the trial, a demurrer to evidence was tendered by the defendant, and joined by the plaintiff. The demurrer sets out a record of a suit, by the appellee against Baylor the obligor, in the District Court. This record states the time of filing the bill, but is wholly silent as to that of taking out the writ, although it is evident that that E)poch may be very important on the question in issue between the parties. On that Demurrer a Judgment was rendered in the County Court for the defendant. Had it been shewn that the suit had been instituted at an earlier day, (as doubtless it might,) the decision on the demurrer might have been different. The Judgment of the County Court was reversed by the Superior Court, and judgment rendered for the debt.

It is a principle that “that whole proceeding upon a Demurrer to evidence is under the control of the Judge, before whom the trial is had;” Gibson v. Hunter, 2 H. Bl. rep. 208; so the notes of the testimony are taken down by the Judge or his associate, and signed by Counsel. Buller’s N. P., 313; 5 Bac. 468. If that be the case, the Court should require that fact to be stated in the Demurrer, on which alone the point in issue must depend, and which the Court judicially knows has an existence. The Court judicially knows that every declaration is founded on a Writ, and that the latter is prior in point of time to the former. If, owing to mistake or other causes, this material fact be omitted, without which the merits of the case can not be decided, and that thro’ the default of the superintending tribunal, (the Court,) it ought to be corrected for the sake of justice, and on the principle, that it is incident to a Court to correct it’s own errors. If a Court has power to set aside a case agreed, which is the act of the parties, or a special verdict, which is the act of the jury, because they omit to find facts material to the decision of the point in issue, *it would seem to have that power a fortiori in the case before us; in a case in which the fault is in some sense it’s own. But this point does not rest on general reasoning. It is laid down in the case of Cocksedge v. Fanshaw, (Dougl. 132,) that the reason of resorting to a Demurrer to evidence, is “because the Jury may refuse to find a “special verdict, and then the facts never appear of record; but that, whether the case comes before the Court on a demurrer to evidence, or a special verdict, the law is the same:” that is, as we presume, the necessary facts must be shewn in the former case, as well as in the latter. The case before us being of a record, in which, it is judicially known to the Court that a Writ existed, and preceded the filing of the bill, our decision will have no effect as to cases in which ulterior evidence may or may not exist, and in which it is not certainly known to the Court that it does exist. In such cases, the party must abide by the testimony he has exhibited. But, in this case, the Court, for it’s own sake, and in order to get at the real merits, should have called for a fact, which it judicially knew had existence, and for want of which, a decision contrary to the right of the cause may have taken place.

The Court in this case should say, as it has often said in relation to special verdicts, and as it did in relation to an agreed case in Brewer v. Opie, 1 Call 214, that the same were, respectively, too uncertain for a judgment to be given thereon. 11 ought to say. as was said, in effect, in the case of Gibson v. Hunter in the House of Lords in England, (2 H. Bl. 207,) that this demurrer has been so negligently framed that there are not the necessary facts, on which a judgment can be founded. It ought to say, as was said in the last mentioned case, that a venire de novo ought to be awarded, because “the issue joined between the parties, in effect, has not been tried.” It has not been tried by the Jury, owing to it’s translation to the forum of the Court by the demurrer; nor by the Court, for the want of the necessary facts whereon to ground it’s decision. In this case, therefore, as in that, and in the case of Wright v. Pindar quoted in it, the Demurrer *should be set aside, and a venire de novo awarded.

The Judgments of both Courts are therefore to be reversed, the demurrer to evidence set aside, and a venire de novo awarded. We do not regret that the cause thus goes off without a decision on the merits. The points embraced in those merits are very important, and we hope may hereafter receive the consideration of a fuller Court.

JUDGE COALTER,

dissenting, delivered the following separate opinion.

The first important question In this case is, whether, upon the state of the evidence given for the plaintiff, it was competent to the defendant to insist upon the Jury being discharged from giving a verdict, by demurring to the evidence, and obliging the plaintiff to join in demurrer?

The evidence offered by the plaintiff, except proof that the appellant assigned the bond to her, was the record of the suit which she, as assignee, had prosecuted against the obligor and its administrator. This presented a naked case, unaccompanied by any circumstances on either side, other than those appearing in the record, of a delay by an assignee to sue for upwards of two years after the assignment; and the question for the Court to decide was whether such delay exonerated the assignor?

It is said, however, that the record in this case is defective as it begins with the filing of the declaration, and shews that the party had been arrested on a writ theretofore issued; and as this writ may have been an important part of the plaintiff’s proof, as there may have been various writs of capias, alias, pluries, &c., it may be the fact that the suit was instituted long before the filing . of the declaration, — that the Court who pronounced the law on this demurrer judicially knew this possibility, and therefore the evidence was so incomplete and uncertain that no judgment could be given in the case, and a venire de novo ought to have been awarded.

*'My strong impression is that, if the date of the Writ was really material to the party, (as, from the certificate of the Clerk relative thereto, but which is no part of this record, I incline to think it was,) and if the party, by 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, — 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 de-fence 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 defence *'may exist, altho’ it is not stated so as to avail against the demurrer.' — So, the party demurring to the 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?

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 mairitainance of an issue joined, the adverse party may insist on the jury being discharged from giving a verdict, by demurring to the evidence, 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 writing.” — -‘‘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 show 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, 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 the facts before them.

The evidence in that case was of this last description, 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 “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 ap-pellee, in consequence of which a venire de novo must be awarded, no opinion will be given on the demurrer. 
      
       2 H. Bl. 206.
     
      
       Dougl. 133.
     