
    Knox v. Garland.
    [April Term, 1800.]
    Demurrer to Evidence — Shows That Plaintiff Cannot Recover — Practice.—It the demurrer to evidence shews that the plaintiff ought not to recover, the court cannot set it aside and award a new trial, hut ought to enter judgment for the defendant.
    Same — Evidence Defective. — Where the plaintiffs evidence is not doubtful and uncertain but defective only, the defendant may demur.
    Same — Same—Appeal by Defendant. — In such a case, if the Court does set aside the demurrer and award a new' trial, the defendant may appeal.
    Same — Same — Same — Appeal Refused — Reversal of Judgment. — And if the defendant offers to appeal and the court refuses it, this court will reverse the judgment notwithstanding there was a continuance by consent at a subsequent term, and after that a verdict and judgment for the plaintiff.
    Garland brought an action on the case in the District Court against Knox. The declaration contained 3 counts 1. Tor goods, wares and merchandizes sold and delivered. 2. A quantum valebat for goods, wares and merchandizes, sold and delivered. 3. Tor money .had and received to the plaintiffs use. Plea non assumpsit; and issue. Upon the trial the defendant filed the following demurrer to the evidence. Memorandum, that upon the trial of the issue in this cause, the plaintiff to maintain the issue on his part, produced *four papers purporting to be public securities in these words.
    £12. 10. 3. specie.
    Commissioners office June ISth 1783.
    Sir,
    Pay to Nathaniel Harrison the sum of twelve pounds ten shillings and three pence specie for beef and corn furnished com. pro. law, in Buckingham as per certificate allowed by the court of claims in the said county.
    M. Carrington.
    Samuel Jones.
    Mr. Treasurer, Torged.
    Endorsed Treasury 5th March, 1792.
    There is no mention of any such certificate as the within, in the returns made to> this office by the commissioners, and therefore it is pronounced a counterfeit.
    J. Ambler.
    £5. 10. Specie.
    Commissioners office June 12, 1783.
    Sir,
    Pay to John Clopton the sum of five pounds ten shillings specie for beef furnished the Com. pro. law in Augusta, as per certificate allowed by the court of claims in the said county.
    M. Carrington.
    Samuel Jones.
    Mr. Treasurer Torged
    Endorsed Treasury 5, March 1792.
    
      There is no mention of any such certificate as the within in the returns made to this office by the commissioners, and therefore it is pronounced a counterfeit.
    J. Ambler.
    £4. 14. Specie.
    ^'Commissioners office June 9th 1783. Sir,
    Pay to Edward Oldham the sum of four pounds fourteen shilling's specie for beef furnished the Com. pro. law, in Berkeley, as per certificate allowed by the court of claims in the said county.
    M. Carrington.
    Samuel Jones.
    Mr. Treasurer. Forged
    Endorsed Treasury 5 March 1792.
    There is no mention of any such certificate as the within in the returns made to this office by the commissioners, and therefore it is pronounced a counterfeit.
    J. Ambler.
    £140. Specie.
    Commissioners office July 17, 1783.
    Sir,
    Pay to James Knight the sum of one hundred and forty pounds specie for a waggon and four horses furnished the Com. pro. law, in Augusta as per certificate allowed by the court of claims in the said county.
    M. Carrington.
    Samuel Jones.
    Mr. Treasurer. Forged.
    Endorsed Treasury 5th, of March 1792.
    There is no mention of any such certificate, as the within in the returns made to this office by the commissioners, and therefore it is pronounced a counterfeit.
    J. Ambler.
    He also offered in evidence to the jury an endorsement on each of the said papers and on the face of each of the said papers the word forged, which were proved to be the hand writing of Jaquelin *Ambler the treasurer of this Commonwealth, and to have been written in consequence of the said certificates being presented at the treasury office of the Commonwealth after the plaintiff bought them. The plaintiff also proved by John Wilder, that he John Wilder lived in the store of the defendant in the month of April 1790, and bought a paper of one Jesse Woodward which purported to be a public certificate signed by Mayo Carrington and Samuel Jones as commissioners for £140. for a waggon and horses, which he afterwards sold on account of the defendant to the plaintiff but put no mark on it by which he can know it to be the same that he sold to said plaintiff; neither does he know if either of those now produced is the same. That he the said Wilder acting for the defendant, also sold to the plaintiff three or four other certificates of the said description, all of which amounted to one hundred and sixty four pounds and some shilling's, for which he was paid at the rate of Ss 6 in the pound, by the plaintiff. That he does not know whether any of the said certificates so sold as last aforesaid, are either of the said papers now produced. The defendant then proved by said Wilder that before he bought the said certificate of ,£140. Woodward, he applied to William Haxall to know if the same was counterfeit. That the plaintiff was there at the time. That Haxall gave it as his opinion that the same was not counterfeit. That the plaintiff on the same day, and before he bought the last mentioned certificate told the deponent that he the plaintiff would give 5s 6 per pound to the deponent for the same if the deponent bought it. That after the deponent had bought it, which was on the same day aforesaid the plaintiff did apply on that da.y, once or twice to deponent, to know if he would sell it him for 5s 6. That he did afterwards sell it to the plaintiff for the sum of 5s 6 in the pound, and received the purchase money accordingly, and this being all the evidence which the plaintiff and defendant offered to the jury, *lhe defendant demurs to the same as insufficient in law to maintain the plaintiffs action, and says that he is not, neither is he bound by the law of the land to make any further or other answer thereto, and this he is ready to verify: Wherefore he prays judgment and his costs in his behalf expended to be adjudged to him. And the plaintiff doth aver that the same evidence is sufficient in law to maintain his said action and prays judgment and his damages aforesaid to be adjudged to him together with his costs about his suit in this behalf expended.
    The District Court overruled the demurrer to the evidence; and setting aside the verdict and proceedings subsequent to the issue, awarded a new trial. The record then states, that the defendant prayed an appeal; which the court refused to grant, because as yet they have rendered no final judgment in this cause. At a subsequent court, the suit was continued, by consent of parties. And at a future court, the record proceeds thus, “This day came the parties by their attornies, and thereupon came also a jury &c. who being elected &c. say that the defendant did assume upon himself in manner and form as the plaintiff against him hath declared, and they do assess the plaintiffs damages by occasion of the non performance of that assumption to sixty-three pounds six shillings, besides his costs.” Therefore it is considered by the court that the plaintiff recover against the defendant his damages aforesaid, in form aforesaid assessed, and his costs by him about his suit in this behalf expended, and the said defendant in mercy &c.
    To this judgment the defendant obtained a writ of supersedeas from this court.
    Call for the plaintiff
    in the supersedeas. Contended;
    1. That the District Court erred in overruling the demurrer and awarding a new trial, as the demurrer clearly disclosed a sufficient bar to the plaintiffs action.
    K'For the plaintiff did not shew, that the papers were forged. His only evidence, as to that, is, that he applied to the Treasurer; and he has neither summoned the commissioners, or taken the common precaution of applying at the Auditors office. He has therefore precipitated his case, without the proofs necessary to support his action. Besides Knox was an innocent purchaser, in the fair course of his business, of the papers in question, and therefore he is not liable to refund the money, which he afterwards sold them to the defendant for, without any knowledge of their being counterfeit. Price v. Neal, 3 Burr. 1354. The reasoning of Lord Mansfield, in which case, expressly applies to that before the court. For whatever neglect there was, in the present case, was upon the side of Garland; as the defendant had actual encouragement from him, and bona fide paid the whole value to Woodward. So that it is a misfortune which has happened, without the defendants fault or neglect, but if there be any fault or negligence, it was on the part of the plaintiff as already observed. Consequently, there is no reason for throwing off the loss from one innocent man, upon another innocent man.
    2. That the demurrer to evidence was a proper mode of bringing the case before the court.
    Whenever the plaintiffs evidence does not maintain his action, the defendant may demur and refer it to the court to decide whether the plaintiff can recover or not. For he is not obliged to risque the law of his case with the jury, but has a right to draw it ad aliud examen Cocksedge v. Fanshaw, Dougl. 114; Stephens v. White, 2 Wash. 230. The demurrer therefore ought to have been sustained, and judgment entered on it in favour of the defendant in the court below. .
    3. That the subsequent proceedings make no difference, and were no waiver of the defendants right.
    *For the defendant offered to appeal; and as he had a sufficient case upon the record to entitle, him to judgment, the refusal of the District Court to allow the appeal ought not to prejudice him; and all the subsequent proceedings, there, ought to be considered as in invitum. Of course no inference from thence is to be drawn against him.
    M’Craw contra.
    The justice and law of the case are both in favour of the plaintiff in the court below; for whenever a man has paid money to another upon a consideration, which happens to fail, he is entitled to recover it back in an action for money had and received. But the demurrer to evidence was clearly improper. For the defendant, thereby, prevented the jurjr from inferring, from the evidence, the very facts, which his counsel now insists were not proved. But this he could not do; for he was bound either to have admitted the facts, or suffered the cause to have remained with the jury. Bull. nis. pr. 313. Besides the defendant has, by his subsequent conduct,. waived the objection. For, at a succeeding term, he consented to a continuance of the cause; and finally went into the second trial, without taking any exception. He ought not, therefore, to be allowed to do it now. If, contrary to what is the fact, the evidence stated in the ■ demurrer was insufficient to have enabled the jury to make the necessary inferences, the presumption is, that every essential proof was supplied upon the second trial.
    Call in reply.
    There is nothing, which, ex aequo et bono, entitles the plaintiff to recover of the defendant; who was an innocent person, acting in the regular course of his business, and guilty of no fault. Whether the defendant was liable or not, was a question of law proper for the consideration of the court, and not of the jury. The demurrer therefore, was, clearly, proper. For the jury could not have made any such inferences from the evidence, as is contended for, on the other side. There was nothing in the testimony *which inevitably led to such conclusions. But the inferences ought to be inevitable, or the jury can, no more, make them, than the court; and, where they are inevitable, the court may, as well, make them, as the jury. This is the spirit of the decisions in Cocksedge v. Fanshaw and Stephens v. White. No waiver ought to be presumed. Because the defendant offered to appeal, which operated like a bill of exceptions. The defendant was obliged to submit to the second trial; for the authority of the court, in awarding it, could not be resisted, as they would not allow his appeal, but obliged him to remain where he was. It is no answer to say, that the defendant ought to have made another exception at the second trial. For it would have been nugatory and disrespectful, to the District Court, to have presented the same demurrer again. Besides, the parties would, by that means, have forever run round in a circle; and the cause could never have been ended.
    
      
      Appellate Practice — Two Trials — Judgment on First Verdict. — Where a case is tried and the verdict is rendered, which is set aside by the court, and a new trial is granted, and on the second trial the verdictis for the other party, and judgment is rendered thereon, to which a writ of error is obtained, the appellate court will look to the proceedings on both trials, and if the court below erred in setting aside the first verdict, the appellate court, without considering the subsequent proceedings in the case, will reverse the judgment and enter final judgment on the first verdict. Johnson v. McClung, 26 W. Va. 661, citing and approving the principal case; Pleasants v. Clements, 2 Leigh 474; Briscoe v. Clarke, 1 Rand. 213; Tyler v. Taylor, 21 Gratt. 700. Por this proposition, the principal case is cited wifh approval in Tyler v. Taylor, 21 Gratt. 703.
      Same — Judgment Twice Reversed — Second Appeal.— Where a judgment of a county court is appealed from, and reversed and sent back for a new trial, by the superior court, from which judgment of reversal, there is an appeal to the court of appeals; and before bond and security are given on this appeal the cause goes back to the county court, and is again reversed by tie superior court and a second appeal taken to the court of appeals, on this last appeal, it is competent for the court to enquire into the propriety of the first judgment of reversal. Jones v. Raine, 4 Rand. 386, 390, citing the principal case; Robinson v. Gaines, 3 Call 243; Biggers v. Alderson, 1 H. & M. 54; Fisher v. Duncan, 1 H. & M. 563; Lyons v. Gregory. 3 H. & M. 237.
      Same — Review—Granting or Refusing New Trials.— As an appellate court will review an order of an inferior court overruling the motion for a new trial, and reverse the proceedings of a new trial' improperly refused, so it will review an order granting a new trial, and reverse proceedings if improperly granted. Pleasants v. Clements, 2 Leigh 474, 481, citing the principal case; and Briscoe v. Clarke, 1 Rand. 213. The court said; “It seems to me impossible to distinguish, in point of principle, the case where a new trial has been improperly granted„ from the case where it has been improperly refused-, and I consider it to have been settled by the cases of Knox v. Garland, 2 Call 241; and Briscoe v. Clarke, 1 Rand. 213, that the power of this court extends, alike to both cases.” The principal case is also cited in Tompkins v. Stephens. 10 W. Va. 167, for the proposition that the court of appeals of West Virginia may review the action of the circuit court in either granting or refusing a new trial in a common law suit. See monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
   Per. Cur.

The court is of opinion, that the judgment of the District Court is erroneous, in this. That they overruled the demurrer to evidence, after it had been joined by the parties, and set aside the proceedings, in the cause, subsequent to the issue, without the consent of the parties: Although the evidence on the part of Garland was fully set forth in the demurrer; and there does not appear to be any thing uncertain or doubtful in the evidence, so set forth, to prevent the court, from determining the sufficiency thereof, to maintain the issue joined. Therefore the judgment and proceedings, subsequent to the first verdict, are to be reversed and annulled, with costs: And this court, proceeding to give such judgment as the District Court ought to have given, is of opinion, that the evidence, stated in the demurrer, is not sufficient, in law, to maintain the issue joined on the part of Garland; but Knox is to go thereof, without day, and to recover his costs in that court also.  