
    *APRIL TERM, 1801.
    Martin and Jones Executors of Fairfax v. Stover.
    Practice — Directing Verdict. — The ..court cannot be called on, to instruct the jury to find a verdict for the defendants ; although some of the' evidence is written testimony.- -
    This was an appeal from a judgment of the District .Court, affirming a judgment- of the County Court. Where Stover brought an action on the case against'the executors of Fairfax, and declared for money had áñd received by the‘defendants to the plaintiffs use. 'Pleas' non assumpsit, and non as-sumpsit ' wifhiii five years. ' After 'which the record goes on in these words, which plea'the plaintiff by his áttornéy 'joined. A jury wás sworn to 'try the'issue 'joined. Who found that'thé defendants did assume, in manner and form &c. that the said assumption was made within five 3ears &c. and they assessed damages to 956 dollars 66 cents. For which the Court gave judgment, to be levied of the goods and chattels of Lord Fairfax at the time of his death &c. Si non then the costs &c.
    The defendants upon the trial of the cause filed a bill of exceptions, which stated, that the plaintiff ^offered, in evidence, a decree of the High Court of Chancery on the 8th day of May 1786, between the representatives of Joist .Hite, Robert Green, William Duff and Robert M’Coy plaintiffs and the executors and the heir at law of Lord Fairfax and others defendants; which decree is set forth in hasc verba, and directs that the heir and devisee of Lord Fairfax should convey certain lands, contained in the memorial of Thomas Marshall and others, reserving to all persons (except the heirs, devisees and executors of Lord Fairfax) any claim, which they may have in the said lands. The defendants to have liberty of finishing, gathering, and carrying off, the then growing crops. That the plaintiff should have an account against the estate of Lord Fairfax,'. for the profits of the said lands, from the first day of January 1750, allowing for lasting improvements, composition money and quitrents (which account was ordered to, be made before James Pendleton ■ and others;) and that the plaintiffs ought to be at liberty to resort to the Court, at any time before the final decree, for any damages, which they might make it appear, they had sustained, in the loss of any other surveys, . not then carried into effect.
    Also a paper purporting to be extracts, from the report of James Pendleton &c. which states,, first, the improvements on the plaintiffs lot of 38 acres, third rate high land, with the exceptions thereto. 2dly another statement, between others of the claimants and the executors of Lord Fairfax under the decree aforesaid with the exceptions thereto.
    Also another decree of the High Court of Chancery November 19th 1787, between the representatives of Joist Hite deceased and others plaintiffs, and the heir at law and executors, or other legal representatives, of Thomas Lord Fairfax deceased and others; which after stating that the decree of the Court of Appeals had reserved, *to Lord, Fairfax’s executors, the right of shewing, that his estate was; not liable for the profits, decides that point against them, giving liberty to except to the items of account. It then states, that the parties consented to suspend the consideration of the account, so far as related to profits arising from lands, concerning which claims had been filed founded upon the titles derived from the plaintiffs or their ancestors, until those claims should be discussed; and Lord Fairfax’s executors waived their exceptions in the case of Holman’s orphan, from the 3 to the 8 inclusive, and áll of a similar nature in other cases. Refuses interest on the profits: and provides for payment of the costs.
    Also another decree of the High Court of Chancery between John Hite, Isaac Hite and others plaintiffs, and the executors and heir at law, or other legal representatives of Lord Fairfax defendants, dated May 8th 1786; which dismisses the bill of Soloman Huddle and others (of whom the plaintiff is one) for the narrow passage land; which they claimed under the decree of the 8th of May 1786 aforesaid.
    Also the deposition of Isaac Hite, that he was present at a meeting at Woodstock, after the commissioners report aforesaid in the suit between Isaac Hite the father of the deponent, and one of the claimants, under Joist Hite of the narrow passage land. When there was a conversation relative to a compromise, concerning the rents and profits, mentioned in the decree. That the said Isaac proposed to the defendant Jones, that the persons entitled under the decree would take ¿8000. ; which Jones refusing, a lesser sum was agreed on by said Isaac; who, afterwards met Jones at the house of the defendant Martin; where Isaac proposed, that the claimants would take ¿7000. : To which Martin agreed; and the money was paid to Isaac and the other persons interested; whereupon all claims to profits under the ^decree were released by the said Isaac Hite and the other claimants. That the deponent doth not believe that his father would have consented to take ¿7000., had he not supposed that the defendants were entitled to a credit, for improvements.
    Also the deposition of Ulrich Keener, that, being interested in the decrees, he asked the defendant Jones what he should do? who referred him to George Nicholas. That at another time he asked Jones, if he should petition the Assembly respecting the land? That Jones, afterwards, drew the heads of a petition, and delivered them to the deponent.
    “That there being no other evidence, the defendants moved the Court to instruct the jury to find for the defendants, the said testimony being illegal and insufficient, and therefore not entitling the plaintiff to his action against the defendants; which the Court refused to do, and the jury therefore acted on the said testimony without.”
    Call for the appellant.
    There is no issue joined upon the plea of the statute of limitations ; for there is no replication denying any of the allegations contained in it.
    Neither is the declaration maintained by the evidence. For the count is for money had and received, and there is no testimony tending to shew', that any money was received by the defendants: Whose promise, for the debt of their testator, would not bind, unless it had been reduced into writing, according to the directions of the act of Assembly, concerning frauds and perjuries.
    But the plaintiff ought not to have been permitted to recover on this declaration; because it was too general, and gave no notice to the defendant of the nature of the dispute. 2 Wash. 172.
    *Upon these grounds the court below would have done right, in instructing the jury, that they'should find for the defendants; for the plaintiffs claim being supported by records, it was the province of the court, and not of the jury, to decide upon them. For wherever matter of law, or the construction of written testimony, occurs, it belongs to the court to consider it. 1 Term. Rep. 180; Calvert v. Bowdoinin this court, 1 Wash. 220; Syme v. Butler executor of Aylett in this court.
    Wickham contra.
    The doctrine, last contended for, is expressly contrary to that laid down in Keel & Roberts v. Herbert, 1 Wash. 203, and Wroe v. Washington, 1 Wash. 357, as well as to what was laid in the very case of Finch v. Thweat, cited on the other side. All which expressly state, that the court cannot instruct the jury, to find a verdict for one of the parties. Which is consistent with the decision in Calvert v. Bowdoin; for, in that case, the court below affirmed, to the jury, that the evidence was sufficient to maintain the action; and this court reversed the judgment.
    Besides the court has often decided, that a bill of exceptions cannot be considered as a demurrer to evidence; and the argument of the appellants counsel only amounts to an attempt of that kind: For, if his objections were well founded, they ought to have been brought on, by demurrer to evidence, and not by a bill of exceptions.
    But there is no ground for the objections; because the improvements made by the plaintiff, were allowed the executors of Lord Fairfax in the account, between them and the Hites ; and therefore it was so much money received by them to the plaintiffs use. As to the exception relative to the issue, it is, at most, but a mere mis-joinder.
    *Call in reply.
    In Calvert v. Bow-doin, the court, not only declared, that the court below was wrong in affirming to the plaintiff that the evidence was sufficient, but they went on to non-suit the plaintiff; and, therefore, decided on the competency of the evidence. Which being written, in that case, as well as in this, that case proves, that the court, and not the jury, should decide the matter of law. In that respect the present case differs from those relied on, upon the other side. In those the evidence was parol; but in this there was a construction of papers. The declaration was too general, and gave no notice to the defendants. Besides it should have been for money laid out and expended, and not for money had and received to the plaintiffs use.
    Cur. adv. vult.
    
      
      Evidence — Weight—Province of Jury. — On this subject the principal-case is cited in Brooke v. Young, 3 Rand. 114 : foot-note to Bogle v. Sullivant, 1 Call 561, also, in Fitzhugh v. Fitzhugh, 11 Gratt. 307.
    
    
      
      In 1791 M. S. Reports.
    
    
      
      1 Call’s Rep. 105.
    
   LYONS, Judge.

Delivered the resolution of the court, that the judgment of the District Court should be affirmed ; that there was, perhaps, an error in the courts entering the judgment de bonis testatoris; but, as it was for the benefit of the appellant, and the other side was not dissatisfied, that the appellant had no cause to complain.

Judgment Affirmed.  