
    Hyers & al. v. Wood.
    [April Term, 1801.]
    Demurrer to Evidence — Testimony.—in demurrer to evidence all the testimony on both sides ought to be inserted,' and if the demandant in a writ of right demur to the evidence he must shew a title In himself.
    Pleading and Practice — Wrlt of Right — Non-Tenure. — Non-tenure may be given in evidence where the mise is joined on the mere right.
    Robert Wood brought a writ of right in the County Court of Hardy, against Leonard Hyers, John Hyers, Lewis Hyers, Martin Shobe, Rudolph Shobe, Martin Powers, Jacob Shobe,- Christopher Ermontrout, Martin Shobe, jr. Abraham Stooky, Modlin Stooky and Conrad Carr, for “His fourth undivided part of one tenement, containing eleven hundred and twenty acres of land with the appurtenances in the county aforesaid, late the county of Augusta, on the South branch of Potowmack river, and bounded as followeth, to wit: Beginning at two red oaks, on the South side the North fork of the said branch, thence S. 28 W. 106 poles to a black walnut, white oak and Elm, on a branch at the foot of a hill, thence N. 74 W. 400 poles to a red oak, at the foot of a hill, thence N. 57 W. 248 poles to a white oak, on a hill, thence ■S. 52 W. 160 poles to a white oak, thence N. 80 W. 48 poles to two white oaks, thence N. 49 W. 100 poles, thence N. 15 W. 40 poles to a sugar tree and hicory on the said branch, thence down the several courses of the same to the beginning.”
    *The parties joined the mise upon the mere right according to form in the act of Assembly.
    There is in the record a patent to Robert Green dated 12th January 1746, for 1120 acres of land in Augusta county, the boundaries of which are the same with those mentioned in the count. Also a deed from Mary Wood devisee of James Wood, to James Wood and Robert Wood for her undivided moiety of the said tract of land. A copy of the first named James Woods will, whereby he devises all his estate to his wife the said Mary Wood on condition that she pay to each of his children ^20. on their coming of age. Also a copj of the will of Robert Green, in which is the following clause. “I bequeath unto my sons James and Moses Green and their heirs and assigns one tract &c. "as also all my part of the lands which now are patented in my name" on the South branches of Potowmack river reserving to Colonel James Wood of Frederick county one half thereof, &c. And I do give and bequeath to the said James Wood and his heirs and assigns forever one equal half part of the said lands patented, on the South branch of Potow-mack.”
    There are in the record seven leases for three lives from Lord Fairfax for small tracts of land, to Jacob Stooky, Leonard Hyers, Martin Shobe, Martin Powers, Christopher Ermontrout, Barbara Shobe and Jacob Shobe, all dated the 3d of August 1773.
    Upon the trial of the cause, the demand-ants filed a bill of exceptions to the Courts opinion, which stated, that “the demand-ants having offered on the trial a patent in the words and figures following ‘George the second &c. ’ The tenants offered evidence to prove, that the,land, they are in possession of and claim, is not the land demanded of them by the demandants:” That the demandant excepted to .the admission of the testimony but was overruled by the Court.
    *The demandants likewise filed another bill of exceptions in the following words.
    “The demandants in these causes offered a demurrer to the evidence exhibited by the tenants, setting forth that evidence and also the evidence exhibited in behalf of the demands, in the words and figures following, to wit: On the trial of these causes the said tenants gave in evidence the following leases from the late Lord Fairfax to Jacob Stooky in the .words .and figures following, to wit: .Tljis indenture &c. One from the , same to Leonard , Hyers in the words and figures following, to wit: This indenture &c. . One from the same to Martin Shobe in the words and figures following, to wit: This indenture &c. Ope from the same to Martin Powers in the -words and figures following, to wit: This indenture &c. One from, the same to Christopher Ermontrout,in the words and figures following, to wit: This indenture &c. One from the same to Barbara Shobe in the words and figures following, to wit: This indenture &c. One from the same to Jacob Shobe in the words and figures following to wit: This indenture &c. And that they and those to whom the said leases were granted, had b.een in possession twenty two years under the said leases, and twenty years, previous, that the upper part of the land demanded by the demandants in their declaration, lies one mile below the confluence of the North, and the South branch, and on the side opposite from the North fork; and proved, by Jonathan .Heath that he was summoned by the sheriff of Hardy county, to attend the surveying a tract of land, being the land in dispute between the parties aforesaid, whereon Leonard Hyers and others now live; where was present, Colonel Joseph Nevill and JTohn Foley surveyors. They begun said survey about two and one half chains on the South branch of Potowmack about four miles below the mouth of the North fork, near to where fort George formerly stood, the first ^corner extended eleven poles up a run, between . two hills, the second course crossed the point of a hill .which was not passable; they measured back on the first course, into the bottom, to enable them to run the second course.) The second course, as the surveyor then run, was on the point of a hill, where there was no timber cut, at the third corner, there was but little timber, the fourth corner, no timber cut, the,fifth corner, cleared, the sixth corner no timber cut, at the seventh corner, no timber cut, except a road along the river, the last course called for forty poles but found only six, when we came to the river, which if they had extended agreeably to the deed, would have carried them over the South branch to a pine hill. They then went down the different meanders of the river to the beginning. That they diligently examined the different corners, but found no corner tree, nor side mark; that there was an allowance made of two and one half degrees variation. And further proved by Job Welton, that he was summoned by the sheriff of the county, to attend a survey on the land in dispute, and that they began the first course of the survey about the middle of the South branch where fort George formerly stood, that they run the first course,, one hundred and six poles, about eleven rods of which was up a run between tw.o hills, where, the timber was chiefly cut; they, then started on the second course, and run some distance when they came to a steep bank which they could not go down ; they measured back on the first course into the bottom; to enable them to run the second course. The second course as the surveyor then run was on the point of a hill where there was no timber cut, at the third corner, there was but little timber, the fourth corner, no timber cut, the fifth corner cleared, the sixth corner-no timber cut, at the seventh corner no timber cut, except a road along the river, *the last course called for forty poles, but found only six, when we came to the river. They then took down the different meanders of the river, to the beginning. That they diligently examined the different corners, but found no corner tree, nor side mark, that there was an allowance made of two degrees and an half in the variation, and that he was present when they run out the land in 1773; When no marked trees, nor corners, could be discovered. They also gave in evidence the act of Assembly passed in the year 1736, intituled an act for confirming and better securing the titles to lands in the Northern neck. And they further proved by Moses Hutton, that he the said Hutton, has been in this country fifty odd years, that he has always heard the South branch, the South fork and the North fork called as they now are; that the land in possession of the tenants lies on the South side of the South branch, and he believes about one mile below the North fork. And by' William Cun•ningham senr. that he has been on the South branch fifty eight years, that Solomon Hedges lived on the land in dispute fifty five years ago, that the father of the Shobe’s, the present tenants, was in possession of the said land about fifty years ago, and that the tenants have lived there ever since, but the said witness knows of no title that they had. The said land lies a mile or a mile and an half below the North fork and on the South side of the South branch. That the South branch, the South fork and the North fork have been understood as such during the whole time he lived in this country. To which evidence the demandants counsel demurred as insufficient in law, to support the right of the tenants to the lands in contest, and produced in support of their rights a copy of a patent duly attested as the law directs, from George the second, late king of Great Britain; in the words and figures following, George the second &c. and the act' of Assembly passed in the year 1748, entitled, *An act for confirming the grants made by his Majesty, within the bounds of the Northern Neck, as they are now established; and also a copy of the last will and testament of' Robert Green deceased, authenticated under the seal of the county of Orange, where the same was admitted to record, in the words and figures following to wit: In the name &c. And a copy of the will’ of James Wood deceased, certified under the hand of the clerk of the county of Frederick where the same Was admitted to record, in the words and'figures following, to wit: In the name &c. And also a copy of a deed from Mary Wood to the said demandants, certified under the hand of the clerk of the county of Hardy, where the same iá recorded in the' words and figures following, to. wit: This indenture &c. the above being the only evidence given on the part of the demandants; and pray the judgment of the court, whether they have more right to the tenements which they demand against the tenants, or they to hold as they demand. To the reception of which demurrer the -tenants by their counsel objected, for the following reasons, because the demurrer contained as well the evidence demurred to by the de-mandants, as the evidence exhibited by the demandants; and that the facts which that evidence relates contained matter proper for the consideration of the jury. Which objection was sustained by the court. ’ ’
    Verdict and judgment for the tenants; upon which the demandant appealed to the District Court.
    The District Court was of opinion, that the judgment was erroneous, in this, “that the court below ought not-to have admitted the evidence stated on the part of the tenants as mentioned in the demandants bill of exceptions to have gone as evidence to the jury; and in not receiving the demurrer-of the said demandant. ” *That court therefore reversed the judgment; and thereupon the tenants appealed to this court.-
    Call, for the appellant.
    This cáse exactly resembles that of Hyers v-. Green, except, that here is a bill of exceptions to the testimony proving the non tenure, and not a demurrer only, as was the case there. But that circumstance will not make a material difference; because, -if the non tenure could not have been given in evidence, in that case, the Court could not have decided for the tenants, upon evidence introduced for the purpose of proving the non tenure. Besides it may be a question, whether the de-mandant, by offering to demur in this case, ought not to be considered, as thereby consenting to waive his bill of exceptions?
    Williams, contra.
    Contended, 1. That non tenure could not be given in evidence at common law. 2. That the act of Assembly had not altered the common law, in this respect. 3. That, if non tenure could be given in evidence, the judgment ought to be the same, as the judgment on non tenure at common law.
    Upon the first point: The mise is joined upon the mere right; the pleadings are in that manner; and the party cannot allege in evidence, what would go to falsify his own pleadings. When therefore the defendant pleads to the mere right in the land, he insists upon his title only; and therefore renders it unnecessary, for the other side to prove the identity. If then he is suffered to give evidence of non tenure on the trial, he will take his adversary by surprise; as the latter will not come prepared' to meet the objection. Besides non tenure is ' a plea in abatement; and therefore ought to be plead, or it cannot be taken advantage of ■ afterwards. 5 Bac. abr. (last edit.) 426.
    Upon the second' point: The act of Assembly does not alter the rules of the common law upon *this subject. For that only furnishes a shorter mode of joining the mise upon the mere right, but does not alter the rules of proceeding, prior to the mise being joined. For the act of 1786, Rev. Cod. p. 36, ought to be read with that of 1792, Rev. Cod. p. 118, sect. 25: Which expressly treats non tenure as a plea in abatement, and supposes that it will be insisted on, before the mise is joined. According to which reading, the act will stand thus: If the tenant shall not plead non tenure, join-tenancy, or several tenancy in abatement, he may plead in this form, or to this effect, &c. as in the act of 1786. Another argument on this point is that, at common law, the mise was not joined upon collateral points, such as, non tenure &c. but the}' were tried by a common jury ; and therefore as the act only speaks of the mise, it follows, that these collateral matters were not designed to be included.
    Upon the third point: If non tenure could be given in evidence, still the judgment of the County Court is wrong. For it ought to be according to the judgment at common law; which was not a judgment in bar: It acquitted the tenants indeed, but the de-mandant recovered the lands Cook. Lit. 362, 363, 1 Bac. abr. 21. Therefore the judgment, in the present case, which goes in bar of the demandants claim, is clearly wrong, and ought to be reversed.
    The demurrer does not waive the bill of exceptions, as the counsel on the other side supposes. For if they be repugnant, it would only prove, that the demurrer ought not to be received, but not that the bill of exceptions should be relinquished.
    Call. Hon tenure may be given in evidence, since the act of 1786, although the mise is joined upon the mere right. For the act is positive that any matter ma.y be given in evidence which might have been specially pleaded: And as non tenure *clearly might have been specially pleaded before the act, it follows, necessarily, that it may be given in evidence since. This is the more necessary, because, in practice as well as according to the principles of law, the defendant is now obliged to plead in the form prescribed by the act of Assembly: For I am informed, that one of the District Courts refused to permit the defendant to plead a common law plea. A refusal warranted bj principles of law, and the rules for construing statutes: By which, the word may is understood to be imperative, "and synonymous with shall, 6 Bac. abr. (new edit.) 379. Of course there is no choice left to the defendant, but he is obliged to plead the plea, which is prescribed by the act. But it would be preposterous to oblige him to pass by a plea, which would defend him, and to put in another, which will not, without allowing him to give, the matter of the first in evidence. This would be an act of injustice, which ought not to be imputed to the Legislature, when an obvious construction will avoid it.
    There are other considerations, which render, what we contend for, peculiarly proper; namely, the object of the act, and the state of the practice in this country. The object of the act was clearly to simplify the pleadings in this action, and to rid it of all its entanglements and difficulties, by permitting the parties to try their claims, without the dangers, to which, the common law pleadings were exposed. The object therefore ought to be promoted, in the construction of a remedial statute. And this is rendered peculiarly necessary, when the state of the practice is considered. For the gentlemen, who practice in the Inferior Courts, are constantly riding about from Court to Court, and are generally obliged to plead upon the spur of the occasion, without an opportunity of consulting their books, or reflecting on the nature of the case. In this situation, they are forced to make use of the first form which presents itself; and none, in such a dangerous action as this is, at ‘common law, would so obviously occur, as the form in the act of Assembly: Especially, as it must often times be impossible, for the client himself to say, whether the bounds, described in the count, correspond with those of his own land. Considerations of this kind ought to have weight; and accordingly, in the case of Downman v. Downman’s ex’rs, 1 Wash. 26, the state of the practice, in this country, was one reason given, by the court, for the opinion, that a plea of tender, if right in form, might be offered, after an office judgment.
    But there is another circumstance which renders it highly important, that our construction of the act should be adopted; namely, that, at common law, the defendant had a right to demand a view, before he plead; and then he was at liberty to plead non tenure of the lands in the count, or of those put in view, at his election. Booths real actions 30, 15 Vin. ab. 591-2. But, as by the act of 1748, this right to demand a view is taken away, the tenant has no opportunity of knowing the lands, which are specifically demanded, until he comes upon the trial; and therefore, unless he may then object non tenure, and shew that the lands, which the demandant pursues, are different from those he describes in his count, and to which latter the defendant is really entitled, he mustióse his own lands; and the demandant, instead of recoverit g the lands he really sued for, will have judgment for those which did not belong to him, merely from a slip in the pleadings. Thus if the demandant has title to a piece of land, which in fact is claimed by C, but which he supposes to be in the seizin of B, and therefore brings suit against B for it; but, by mistake in setting forth the boundaries, he describes the land which really belongs to B, and the latter, supposing that to be the subject of the suit, puts in the plea prescribed by the act: Here although, upon the trial, it clearly appears, that the land sued for is really that, which C claims, and not that belonging to B, yet the latter will not be allowed to shew this fact, but must ^submit to a judgment, although he does not hold the lands demanded. A consequence which would not have followed, if he could have demanded a view; because he might then have plead, that he did not hold the land put in view, and thus abated the writ. But surely if the law has taken away the view for the benefit of the demandant, so as to avoid.. delay, it ought not to deprive.the tenant, of. the benefit of the .same .matter, in, evidence.
    There is p.erhaps another, ground, upon whi.ch, this right ma.y be maintained.. A, yell known distinction. exists between writs, which ,are abateable merely, and-writs which de facto .abaté. ■ In the first case the matter .must be plead, but not in the other. An instance of the latter, kind, is this; if one brings a..suit in the name of a.dead man, or of a fictitious,person,..here, although the defendant. may, by mistake, happen to plead in chief, yet when the fact is discovered the . proceedings. will be ^topped, and th,e,suit abated. There is..the same reason for abating the suit, where it is found, that the plaintiff sues for different lands, than those in the possession of the defendant. For.it would be ab.surd, to permit the plaintiff to. rec.over, .against the defendant, lands, which the latter does not hold; and therefore could not render to him, , . .
    These principles, must have regulated the decision, in Hyers v. Green ; because it was impossible to have decided for the tenants, in that case, without overruling the exception in this. And in Beverley y. Fogg, 1 Call’s Rep. 484, the .court must, .have been under . the influence PÍ similar reasoning. i?pr there the .exception was., that, the boundaries of the land w.ere not set forth in .the count; and the answer .was, that it was too late to make.an objection upon that ground, at the trial. “For the. tenant'haying, gone to issue, on the count, he had taken on himself the knowledge of the lands ■demanded. ” Which is the same .objection, in other words, as that .taken in the present .case; *for the objection, here, is no .more, than that the- defendant, .by pleading. in chief, undertook to .know, the lands; and that. . was the very argument made, use of there.. Of course, as it did.not prevail there, no more ought it here: Especially as the court, in giving judgment there,, say, that the jury had not.found the boundaries; which admits, that .there., may be a specification of. the lands,- upon the trial.
    The demandant receives no prejudice from our construction; because the judgment, in tfiis case, will not bar his recovery of his own lands, if he has title,. against the person who actually has possession of them.
    The judgment in. non tenure, is not such as the counsel supposes. For if non tenure be a mere plea in abatement, yet, .as a .plea in. abatement it vacates . and destroys the writ; and therefore the demandant cannot have judgment: Because the writ is.the foundation of the plaintiffs recovery. But if there be no writ, there can be.no recovery; and after a.writ is abated,,.it is. the same thing, as if there never had been one at all; and both parties are but of. Court. Therefore Booth in hrs book on real,.actions says, that “if the tenant do not hold- , any part of the land, i. e. be not tenant of the freehold, the .writ shall abate; because, as Bracton says, he cannot . lose that which he has not; and therefore the .writ shall fall.” Which proves clearly that no judgment is to be rendered for the demandant, on such a plea. Nor do the authorities, cited pn the other side, prove it. For the passages quoted from Littleton Sect. 691, 692, -only state, what will be the consequences of the demandants entering on the lands, after the judgment against him on the plea, and not that any judgment, at all,, shall be rendered for him: Which is the very exposition given of them, by Lord Coke; *who says fol. 363 (a.) “Albeit in this case, and in the case before, the entry of the demandant is his own act, and the demandant hath no- express judgment to recover, yet he shall be remitted.” Which clearly repels the idea, suggested on the other side.
    It is unnecessary, to say any thing, as to the merits; because they are admitted to be the same with those in Hyers v. Green; and consequently, in favour of the appellants ; so that the case rests merely on the technical exception.
    The offer to demur is a waiver of the bill of exceptions; because they are repugnant. For, by. demurring, the party admits the evidence; but denies the inference of law. Therefore to except and demur too involves a contradiction ; - and, consequently, the one must be considered, as a waiver of the other; or else the court will permit the party, to take contradictory steps. ■
    Wickham, contra.
    The point of non tenure was not decided in Hyers v. Green.
    LYONS, - Judge. I understood the decision in Hyers v. Green, to have proceeded on the ground that the plaintiff had. noc shewn any title in himself.
    Wickham.. Then we are still at liberty to argue the point of non tenure. If the counsel, on the other side, are right, in their construction of the act of 1786, then .judgment final is to be entered against the demandant in favour of the tenant, who will thus, become entitled to the lands of the demandant, although he' had no right to them;. for the demandant will be for ever . barred to claim them in any other action: Which must certainly be contrary to the intention of the Legislature. The word demurrer in the act of 1786 shews, that the tenant is not obliged to join the mise upon the mere right; and consequently that the word may is not imperative, as those on the other side suppose. Nor do the cases, cited from *6 Bac. prove it; for they relate to the acts of public officers. The argument, drawn from the doctrine of views, is plausible, at first sight, but it is founded on a mistake of the subject; for that related to the title papers. Nor. does the case of Beverley v. Fogg apply ; because it is necessary, that the count should describe the bounds; so that the sheriff may know, what lands to deliver, and .that the land marks should be perpetuated. The act of 1786 only relates to pleas in bar; like pleading the general issue, with leave to give the special matter in evidence.
    The demurrer is no waiver of the bill of exceptions. For the exception is to the admissibility; but the demurrer denies its -force, when admitted.
    Randolph, in reply.
    If the tenants are entitled to the lands thej’ hold, they ought not to lose them by a slip in pleading; yet such would be the consequence of the doctrine contended for, on the other side. But fortunately the law does not warrant the doctrine. The act of 1786 is express, that all matters of defence, of whatever description they be, may be given in evidence; and consequently non tenure. Which is agreeable to the doctrine of the common law; for, at common law, any thing but collateral warranty may be given in evidence. The tenants are obliged to plead the plea prescribed in the act; which is imperative, as has been rightly stated. This is proved by the case of Beverley v. Fogg; for the judgment there was reversed, merely because the bounds were not inserted in the count, agreeable to the directions of the act.
    Cur. adv. vult.
    
      
      Demurrer to the Evidence. — On this subject, the principal case is cited in Green v. Judith, 5 Rand. 10, 17: Green v. Buckner, 6 Leigh 82: Dishazer v. Maitland, 12 Leigh 533; foot-note to Trout v. Va. & Tenn. R. R. Co., 23 Gratt. 619. See monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364. The principal case is cited In Harman v. Cundiff, 83 Va. 249.
    
    
      
      Pleading and Practice — Writ, of Right — Joinder of Mise — Non^Tenure.—The principal case holds that non-tenure may be given in évidence'where the mise is joined on the mere right.
      In Bolling v. Mayor, 3 Rand, 578. the principal case is cited and overruled, that case holding that where the mise is joined on the mere right, it is not competent for the tenant to give in evidence non tenure, or any other matter in abatement-, but such matters-must be specially pleaded as at common law.
    
    
      
      Ante, 555.
    
    
      
      39.-
    
   ROANE, Judge.

This is a writ of right, for 1120 acres of land on the South branch of Potowmack; The count and plea are both conformable to the act of 1786, and both describe the tract, as comprehended within the same boundaries. At the 'trial of the cause, two exceptions were taken *by the demandants: 1. To the admission of testimony going to shew the non identity of the land possessed by the tenants, with relation to that described in the count and plea. 2. To the decision of the Court refusing to compel the tenants, to join in a demurrer tendered' by the de-mandants. In support of this last decision, two grounds were stated by the tenants counsel. 1. That the demurrant had also inserted, in his demurrer, his own testimony. 2. That the facts, to which the evidence related, contained matter proper for the consideration of the jury. The judgment of the County Court was reversed by the judgment of the District Court, '“for that, as they aliedge, the Court below ought not to have admitted the evidence stated on the part of the tenants, as mentioned in the demurrants bill of exceptions, to have gone as evidence to the jury; and in not receiving the demurrer to evidence.”

The rectitude, of this opinion of the District Court, is now to be discussed; and I will first consider the case, on the second bill of exceptions, relative ' to the demurrer to evidence.

As to the first objection stated by ' the tenants ; to the reception of the demurrer,-1 shall only say, that in the case of Hyers v. Green, this Court were of opinion, on consideration of the case of Hoyle v. Young, 1 Wash. 150, and other authorities, that the plaintiff ought, especially in a writ ■ of right, also to set out his own evidence ; and in that case, justified the rejection of the demurrer, on the ground, that the de-murrant had not stated a title to recover, in respect of his own identity. This objection does not hold in the present case, for the identity of the demandant is fully manifested. I am not certain, whether the Court, in Green v. Hyers, considered the ground of the second objection, although the demurrers, in the two cases, are in that respect, substantially alike. But I take the rule to be, that although a Court ought to award a joinder in demurrer, where the ^evidence demurred to' is in writing,' or, being parol, is explicit, and will not admit of variance', yet that, where the parol testimony is loose, indeterminate, and circumstantial, the party offering it, shall not be compelled to join in demurrer, unless the party demurring will distinctly admit every fact and conclusion, which such evidence, or circumstances, may conduce to prove. In support of this distinction, T beg leave to refer to 5 Bac. abr. (new edit.) 467, and the authorities there cited; and to say that the evidence in question, in this case, respecting the boundaries of the land, and the understanding of the country, relative to the description of the river, is entirely of this latter description, being both loose and circumstantial. The demurrer to evidence, therefore, may be thrown out of the case.

The only remaining point to be considered arises out of the first bill of exceptions ; and is simply, whether, upon the mise being joined according to the form prescribed by the act of Assembly, evidence, going to shew a non tenure of the lands stated in the pleadings, be admissible?

The act of 1786, concerning writs of right, prescribes the manner in which demurrants shall count. It also prescribes a general mode in which the tenant may plead. I think it is not only inferrable, from the various use of the words shall and may, but from the actual existence, at' that time, of the act of 22 Geb. 2, ch. 1 (since re-enacted) authorizing a plea of non tenure in abatement, that the general plea, prescribed by the'act of 1786, is concurrent and not exclusive.

Nor- will the inconveniences result, which the appellees counsel' apprehended; and which he stated would arise, from the different judgments, prescribed by the common .law, in the case 'of -non tenure being pleaded, and the mise being joined. If non tenure be now pleaded, the Court will give such judgment, thereupon, as the common law requires: But if it be given in evidence, and the jury find a i;'special verdict, affirming such evidence, the Court will give a similar judgment. If, however, such evidence be given, and yet a general verdict be rendered upon the right, such verdict is a negative of that-evidence; and decides the right: In which case, a judgment, corresponding with the-verdict, ought to be rendered.

For these reasons, I think the judgment of the County Court was correct; and that the judgment of” the District Court, reversing' that judgment, ought to be reversed.

FLEMING, Judge.

This is an appeal from a judgment of the District Court, reversing a judgment of the County Court, rendered in favor of the appellants in this Court; and the reasons, given by the District Court, are, 1. That the County Court permitted evidence to be given to the jury, that the tenants were not in possession of the lands demanded, when the mise had been joined, between the parties, upon the mere right. 2. That the County Court did not compel the tenants to join in the demurrer to the evidence, which was tendered by the demandant.

As to the first: The Legislature of this country, in order to simplify the pleadings; expedite the trials; and prevent unnecessary delays in writs of right, have taken away the views and other delatories, and obliged the tenant to plead the general issue, and put himself upon the assize; allowing him to give any matter in evidence, at the trial of the cause, which might have been specifically pleaded. This latter provision appears to have been made, in order to reserve to him the benefits, to which he would have been entitled by the common law proceedings; and therefore he ought not to be deprived of them by argument's drawn from the common law, before the mode of proceeding was changed bythe act of Assembly.

But it is objected by the counsel for the appellants, that the act of Assembly does not oblige the ^tenant to put himself upon the assize; for, by using the word may, they leave it optional in him, to put in the plea prescribed by the act, or to plead any matter specially, according to the course of the common law. Such a construction, however, would render the act a dead letter; for the tenant might, at common law, have joined the mise upon the mere right, and put himself upon the assize, without the aid of a statute,- to enable him to do it. This shews that a change in the proceedings was contemplated; and that the word may was intended to be compulsory. In other words it was not intended, that it should be left to the tenants option, what he would plead, but the meaning was, that he should be obliged to use the plea prescribed by the act: However, in order to prevent his sustaining any prejudice thereby, he is allowed to give any matter, in evidence, which he might have specially pleaded. By this means, the proceedings are simplified, and delays prevented, without any injury to the party: Which was the great desideratum, and what the statute was designed to effect. Consequently, it would be thwarting the will of the Legislature, and defeating the end of the act of Assembly, if we were to throw the party back again upon the technical rules of the common law; which the statute was made to correct.

I am therefore clearly of opinion, that the County Court very properly permitted the evidence of non tenure to be given to the jury; and consequently that the opinion of the District Court upon that point was erroneous. k

With respect to the second point relative to the demurrer to the evidence: After the County Court had permitted the evidence to go to the jury, the cause rested on a single point; namely, whether the lands in possession of the tenants were the same, with that claimed by the demandant in his count? This was a mere fact, proper for the consideration of the jury upon the evidence; and ^therefore I think the County Court very properly left it to their decision.

The result is, that I am of opinion, the judgment of the District Court was erroneous upon both grounds; and therefore, that it ought to be reversed, and the judgment of the County Court affirmed.

LYONS, Judge.

The demurrer, after stating the titles and claims of all the parties, reduces the question to a single fact; that is to say, whether the land claimed by the demandant, and in possession of the tenants, is within the bounds of the patent granted, to Robert Green, in the year 1746, for 1120 acres, in the county of Augusta? Or in other words, whether it is the same land, which was surveyed for, and granted, to Robert Green by that patent? This was a simple question of fact; which a jury alone could, and ought to have determined. Therefore I think, the County Court, very ■properly left it to their decision.

But it is objected, that the tenants, not having plead non tenure in abatement, were precluded from giving it in evidence, or in any manner questioning the identity of the land. Suppose that position, were to be granted, could the demandant recover without shewing some title? After offering, in his count, proof of his right, has he produced it, or shewn any title, to the land which he has surveyed in possession of the tenants? That land lies on the South side of the South fork of the South branch; and not on the South side of the North fork, as his patent calls for, and states the land he claims to lie. Then is it just, or can it be law,' that after an issue is joined on the mere right, that the claimant shall recover land to which he shews no right, merely because the tenant cannot produce a patent for it? Surely, possession in such a case gives the best right; and the demandant ought not to be allowed to disturb it, without shewing a complete title in himself.

*Suppose the tenants had produced a prior patent for lands lying in the county of Augusta, and insisted that the lands claimed were within the bounds of their patent, must not the jury have en-quired into the bounds of both patents, and determined whether the lands were included in either? And, if not included in either, what must have been their verdict? Could they have found for the demandant, who had no better title than the tenants? 'Surely not, for he could have no claim to a verdict, without shewing a title. But if the tenants may controvert the boundaries, where different patents are produced, without pleading non tenure, I see no reason why they may not do it in every other case. The difficulty arises on account of the judgment to be entered in such cases, as it is a bar to the demandant to sue the tenant again. This might have been provided for by the Legislature, when they were altering the mode of proceeding; but having omitted to do so, the legal consequences must take place.

If however the tenant does not chuse to enter into the controversy, respecting the title, or bounds, on the general issue, he may still plead non tenure in abatement, as the act does not forbid it. All the difference is, that a different judgment will be entered for the tenant in that case, if found for him, than would be entered on a joinder of the mise; and that the demandant may take issue on the non tenure, or discontinue .his suit as he sees proper.

Upon the whole, I am of opinion, that-the judgment of the District Court should be reversed; and that of the County Court affirmed.  