
    Hyers & al. v. Green.
    [April Term, 1801.]
    Demurrer to Evidence — Testimony.—In a demurrer to evidence all the testimony on both sides ought to be inserted.
    Writ oi Right — Evidence—Non-Tenure.—Quere: If non-tenure may be given in evidence in a writ of right, where the mise is joined on the mere right?
    James Green 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 folioweth, to wi't: 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 hickory on the said branch, thence down the several courses of the same to the beginning.”
    The mise was joined, by the parties, upon the mere right, according to the form of the act of Assembly.
    There is a deed from Lord Fairfax to Jacob Stooky for three lives dated 3d August 1773. Another of the same date to Leonard Hyers for 223 acres. Another of the same date to Martin Shobe for 89 acres. Another of the same date to Martin Shobe for 211 acres. Another of the same date to Martin Powers for 130 acres. Another of the same date to Christopher Ermontrout for 167 acres. Another of the same date to Barbary Shobe for 177 acres. And another of the same date to Jacob Shobe for 97 acres.
    There is a patent to Robert Green for 1120 acres dated 12th January 1746.
    There is a copy of the said Robert Green’s will dated 22d of February 174%. In which is the following clause, to wit: “I give and bequeath unto my said sons James and Moses Green and their heirs and assigns forever, one half of a tract of land, ■containing two thousand acres, lying in Augusta county, between the Shenandoah, and the Peaked Mountain; and my will is, that the said lands bequeathed to my said sons James and Moses Green shall be equally divided between them, at the ■discretion of my executors.”
    There is a survey of the lands demanded, made by order of the court, which states them to be situated, as follows: “Beginning in the river where the corner was supposed to have stood, running across the bottom S. 25 W. 106 poles *to a small branch between the foot of two hills, old deed calling for a black walnut, white oak and elm, no mark to be found, the timber much cut, thence N. 77 W. 400 poles to the top of a knole, no mark found, the old deed calling for a red oak at the foot of the hill, timber very little cut, thence N. 60 W. 248 poles to the top of the hill by Martin Jobs orchard, old deed calling for a white oak, no mark, timber much cut about there, thence S. 49 W. 160 poles, old deed calling for a white oak, no mark found, timber not cut, thence N. 83 W. 48 poles into Conrad Carr’s meadow, no mark found, old deed calling for two white oaks, timber all cut down, thence N. 52 W. 100 poles, old deed calls for no tree, thence N. 18 W. 6 poles to the river, old deed calling for 40 poles in this course and a sugar tree and hickory on the bank of the river, no mark found, the timber not much cut, onlj' a road on the bank, thence down the several meanders of the river to beginning, containing one thousand and fifty acres.”
    Upon the trial of the cause, the demand-ant filed a bill of exceptions to the courts opinion, which stated, that the demandant tendered a demurrer to the evidence, in these words, “the tenants in these causes gave in evidence the following leases, (naming them in the order above mentioned,) and they and those to whom the said leases were given, under whom they claim, have been in possession twenty two years under the above mentioned leases, and twenty years previous, that upper part of the land demanded by the demandant in his declaration, lies one mile below the confluence of the North fork, and the South branch, and on the side opposite from the North fork; and the demandants further proved by Philip Paul Yoakum the lands whereon the aforesaid Leonard Hyers, and others now live, (being the lands in dispute,*) do lay on the South branch of Potowmack, and that he has resided in this county about fifty years, and never knew *said river called by any other name, and that the said lands lay some distance below the mouth of the north fork and on the opposite side of the South branch river. And by Jonathan Heath that he was summoned by the sheriff of Hardy county, to attend the surveying a tract of land, being the lands in dispute between the parties aforesaid, whereon said Leonard Hyers and others now live; where was present, Colonel Joseph Nevill and John Foley surveyors. They begun said survey about two and one half chains in the South branch of Potowmack about four miles below the mouth of the North fork, near to where fort George formerly stood, the first course 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 c.ut, except a road along', the river, the last .course. calls ■ for . forty poles but found, qnly .six, when we came to.the-river, which if they had extended agreeable to the deed, would have carried them over the South branch into.a pine hill,, they then took down the different meanders of the river to the beginning, that they diligently examined the different courses, 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 Michael Bee, th.at he has- res.ided in this county fifty years,, that .the north fork enters into the South branch about a mile .and a quarter above the upper end of the land in dispute, tha't the South fork of the said river empties into the South branch, about eleven miles below the said land. And further proved.by *Job Welton, that he was summoned-by the sheriff of this county, to attend a survey on the lands 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, about eleven rods up a run between two hills, where th.e timber was . chiefly cut, the}' 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 o.n 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, at the .sixth corner no .timber cut, at the seventh .corner no timber cut, except a road along the river, the. last course called for fortj' 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 of two degrees and an half in the variation, and that he was present when Asleby run out the land in., 1773. When no marks, line trees, or corners, could be discovered. To which .evidence the demandant by his counsel demurred as insufficient in law, to support the right of the tenants to the land in contest, and produced in support of his right a cop3 of a patent' duly attested as the law directs, from his late Majesty George the second, 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 .estáblished; and also a copy of the last will and testament of Robert Green deceased, authenticated under the seal of *Orange county, where the same was admitted to record in the words following to wit: In the name &c. and .prays the judgment of the Court, whether, he has more right to the tenements, which he demandeth against them, or they, to hold it, as they. demand it.”
    That the court, refused to permit the demurrer 'to be filed.
    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 éxceptions to have gone as evidence to-the jury; and in not receiving the demurrer of the said demandant.” That court therefore reyerged the judgment; and thereupon the tenants appealed to this court.
    Call for the appellant.
    , A demurrer to evidence should be capable of being reduced ,to so much certainty, that the court may ascertain the fact; .and although the court may presume every thing against the party rendering the demurrer, they cannot presume any thing against the other party. For it would be absurd to .oblige a man to admit, what he denies. But, in the present case, neither do the lands claimed agree with those described in the count; nor does it appear, that the demandant was entitled, under the will of Robert Green. For it is .not shewn, that the plaintiff is the person, to whom the lands are devised; which it was necessarj' for the demandant to have done; because that was the foundation of his title. It would have been clearly so in a special verdict, or in pleading; and as. strict á rule, at least, ought to obtain against the party tendering a demurrer; who, by drawing the cause, from the jury to the court, and thus preventing an ascertainment of *facts by the country,, takes upon. himself, to state a complete title.
    Williams for the appellee.
    . The demand-ant might demur to the tenants evidence. Trials, per pais: . And this upon principle; .for the evidence begins with the tenant. Booths real act, 98; and therefore, if insufficient, the demandant may refer it to. the judgment of the court. The evidence here did not go to shew;, that the tenants, had more mere right, than the demandant; for.it is evident on the whole matter, that ours was the better title. The tenants could; not be permitted to prove, that the laud claimed was different, from that described in the count. For non tenure is a plea in •abatement; and cannot be given in evidence, where the mise is joined upon the mere right. The act of 3786 will not be considered, as making . any difference; for that only permits any thing to be given in evidence, that might have been specially pleaded; which means any thing, that might have been plead in bar, and not abatement. Non tenure is not only considered as a plea in abatement, by the common law, but the act of 1748 Chap. 1, ? 21, treats in it the same manner. With respect to the certainty of the person demanding the land, it is sufficiently shewn: For James Green is the person named in the will; and James Green is the person, who brings the suit. Upon the whole, therefore, the court below ought to have compelled the tenants, to join in the demurrer.
    Wickham on the same side.
    The demurrer ought to have been received. For the uncertainty, spoken of, related only, to non tenure, and the identity of the lands; which were mere matter of abatement, both at common law, and by the act of 1748. But it has been, already, properly shewn, that the act of 1786 does not alter the law, in that respect. For it clearly means pleas in bar, and not -in abatement: Tike the - ordinary case of the general issue, with leave to give the special *matter in evidence; which means evidence relevant, and suited to the case. The count states certain bounds, and the tenants defend those bounds; it would therefore be strange, to allow them to deny the very bounds, which they professed to defend. That would be both to admit, and deny, the identity; which would be absurd. But certainty to a common intent is' sufficient, as well in special verdicts, as in demurrers to evidence; and there was a certainty to a common intent, in the present case.
    Randolph in reply.
    The act of 1786 permits every thing to be given in evidence, which might have been specially pleaded ; and non tenure, or any other matter in abatement, might be specially pleadeá, as well as matter in bar. At common law, every thing might be given in evidence, but collateral warranty; Booth real act; 98. According to which doctrine, non tenure might have been give'n in evidence, before the act of 1786; although the mise was joined on the mere right. Besides, non tenure may be pleaded, either, in bar or abatement. 1 Mod. 294, 214; 1 Bac. 14. The act of 1748 only relates to process, and cannot affect that of 1786. There was no point of law in the case; and therefore the demurrer was improper. No evidence is offered to shew, that the demandant was the devisee; and therefore the court cannot infer it.
    Wickham. Non tenure could not be given in evidence; for the judgment would be a bar, and the demandant liable to be surprised. The 1 Mod. 214, does not prove, that it may be plead in bar; the distinction taken there, by Burrel, expressly proves the contrary. There were questions of law, in this case, arising upon patents, acts of Assembly, wills, &c. which rendered a demurrer proper.
    Randolph. The judgment would not be a bar in a suit for ether lands; because the demurrer would shew, that they were not the same.'
    *This term the court, desired the point, • whether in a demurrer to evidence it was necessary to state all the evidence on both sides, to be spoken to by counsel.
    Call for the appellant.
    It is absolutely necessary, both on principle and authority, that, in a demurrer to evidence, all the testimony, on both sides, should be stated.
    I. Upon principle:
    There is a strict analogy, between a demurrer to evidence, and a demurrer to pleadings. Both are governed by the same principles : In each the plaintiff must shew a good title, against a weak' defence: And the 'defendant must either shew, that no title is set forth by the plaintiff; or he must oppose a good defence, to the good title, alleged by the plaintiff.
    lienee it follows, that, although the'defendant may some tinies demur to the plaintiffs evidence, without shewing any, on his own part, as where the evidence, adduced by the plaintiff, renders it unnecessary, for the defendant to produce any on his part, yet'the plaintiff never can demur to' the defendants evidence, without setting forth his own; becáuse he must shew a good title in himself tó recover, or the weakness of the defendants' title is of no consequence. For he is to recover upon the strength of his own, and not upon the weakness of his adversary’s title.
    The end of all pleadings, and a demurrer to evidence is a species of pleading, is to bring the points, in controversy, fairly before the court.
    Therefore as the plaintiff in his declaration must set forth a good title, or the defendant may demur; without alleging any other matter of defence’; since it is immaterial whether the defendant has a title or not, provided the plaintiff has none: So the plaintiff must ptove a good title, or the defendant may demur to his evidence, and *pray judgment on account of "its insufficiency, without offering any new matter upon his own part; for it would be useless to bring forward testimony, to avoid a title, which is not shewn to exist:
    It results from all this, that it is absolutely necessary, that it should appear, by the demurrer, that the plaintiff has a good cause of action; which prima facie entitles him to judgment, unless it be destroyed by countervailing testimony.
    But, if the plaintiff does set forth a good title in his declaration; the defendant must answer it by a good bar, or the plaintiff may demur. ' For, his own title being good, unless a proper defence to it is set up, he ought to have judgment.’ So if’the plaintiff proves a good cause of action, the defendant must avoid it by a proper defence, or the plaintiff will be entitled to judgment. For an insufficient answer can be no bar to a good title; which necessarily stands, until it is obviated by a paramount defence.
    But if the declaration contains a good title, and the plea a good defence, then the plaintiff must reply a sufficient matter, to avoid the plea, or the defendant may demur; because having given a sufficient answer to the claim it will stand, until it is repelled by some new matter offered by the plaintiff. So if the plaintiff proves a good cause of action, which is destroyed by the defendants evidence, the plaintiff must avoid the defence by countervailing evidence, on his part; for his first evidence being destroyed, by that of his adversary, his action is destroyed also, unless he can repel the defence. And so on, in infinitum.
    Thus far is sufficient to shew the analogy between the demurrers; which upon examination, will be found to run, through all the várious stages of a cause; with this difference only, that where the demurrer is to the pleadings, the alternate steps are distinctly shewn; whereas, in the demurrer to evidence, the testimony is thrown together, *without order or arrangement; so that the alternate steps do not at first sight appear. But still the principles remain the same; because they exist in the very nature of things; and the Judge, when he comes to decide, is necessarily drawn into the arrangement.
    It follows therefore that in every step in pleadings or in proof, unless where the defendant demurs to the plaintiffs evidence, in the first instance without offering any on his own part, the demurrant must shew, that his own title is good, before he can derive any advantage, from the weakness of the countervailing claim.
    To illustrate this by some examples.
    If in ejectment for lands, the defendant shews a conveyance from the plaintiff, the latter may prove that it was given during coverture: To which the defendant may shew subsequent acts of ratification, after the disability removed; and to this the plaintiff may demur, if she thinks the - de-fence incomplete. But then she must, in her demurrer, shew the coverture; or the conveyance being proved, shall entitle the defendant to judgment, whether, the defendants other testimony be important or not.
    So, if in an action of indebitatus as-sumpsit, the plaintiff does not prove the consideration and promise, the defendant may demur, for the insufficiency of the testimony; but if the consideration and promise be proved, and the defendant produce a receipt against all demands, here, if the plaintiff offers to prove, that it was given for apart, the defendant, if he .thinks the testimony does not avoid the receipt, may demur to the evidence; but then he must produce the receipt itself, or the plaintiff, having proved an original cause of action, will recover, whether his subsequent evidence be important, or not.
    *So that in every case the demur-rants testimony must not only contain an answer to that of his adversary, but it must moreover shew a complete title, through all the stages of the evidence.
    The proprietj' of stating the whole evidence is more obvious, when the object of the demurrer is considered: Which is, that the jury, if they please, may refuse to find a special verdict, and then the facts never appear upon the record; to prevent which inconvenience the party resorts to the demurrer, in order to exhibit all the facts, for the judgment of the Court, Dougl. 127. So that the demurrer is, in fact, a mere substitute for a special verdict. But in a special verdict, all the facts on both sides must be found, or the court will grant a new trial; and therefore in the demurrer, which is the substitute, 'the same thing must be done, or the Court may refuse to receive the demurrer. For the Court are to judge of the allegata et probata on both sides; and not upon those of one side only. In other words, they are to decide upon the whole case, and not upon parts: or else, the truth of the title never could be discerned.
    A moments reflection will inevitably lead us to this conclusion. For if the tes- | timony on both sides was not stated, the combination and connection of the parts could not be perceived. It would often times become a mere farrago of unintelligible jargon for want of knowing the points, to which, the repelling testimony, of the party demurred unto, was applied. So that, although the question might turn upon the competency of the repelling testimony only, it would never occur; but the Court -would have to decide upon that, which was offered, by the adversary, before the demurrant ever produced any at all: And thus it would inevitably happen, that it would be impossible to have the very point determined, by the Court, which was meant to be decided.
    *It will be no objection to say, that, by this means, the person demurred unto, will be driven to admit the truth of the demurrants testimony. For that consequence does not follow.
    There are but two grounds upon which that objection could possibly occur; namely, the credit of the demurrants witnesses; and the circumstances which he might insist on, to establish particular facts. For, as to facts actually proved, the demurrant has as much right to state those in his own favor, as the party demurred unto, has to state those in his favor.
    But neither of those two cases produce the effect objected to.
    Not the credibility of the demurrant witnesses :
    Because the demurrant, when stating his own testimony, can only insert the undisputed facts; and if any objection as to the credit of the witnesses, arises, that alone is a sufficient reason for rejecting the demurrer; because the credit of a witness is mattef of fact, and not of law; and as the Court cannot try a matter of fact, it must, if insisted on" remain with the jury. Therefore if the demurrant chooses to take the cause from the jury to the Court he must relinquish the impeached witnesses.
    Not the circumstantial evidence:
    Because the demurrant necessarily yields up his presumptions and probabilities; for by drawing the cause from the jury to the Court, he loses the opportunity of insisting on them before those, who alone are able to draw conclusions of fact. But the case of the party demurred to is very different; for if he insists on probabilities and presumptions, the demurrant is bound to admit the fact he would infer from them ; because he is forced into the demurrer against his consent, and has no opportunity of addressing the jury to infer them. He is not, on this account however, bound to admit the facts, which the demurrant would establish by such ^testimony ;■ because the demurrant might have left them to the jury; and he cannot, by drawing the cause ad aliud examen, oblige the other party, against his inclination to confess what he was disposed to deny. The demurrant is therefore driven to state the facts he actually proves, without any inferences from circumstances; and if any contest arises about the facts so proved, it is to be referred to the Court. Because the whole operation of entering the matter upon record, and conducting a demurrer to evidence, is, and ought to be, under the direction and controul of the Court; subject however to an appeal, by bill of exceptions, if any point be improperly recited or rejected by them. For it is said, that if the Court may overrule, it may also regulate the entry of the proceedings upon the record, and the admissions which are to be made previous to the allowing of the demurrer.
    Thus then it clearly appears, that the objection is imaginary; and that the person demurred to is not bound to admit the truth of the facts insisted on by the de-murrant ; but that the latter must prove them. Yet when he has proved them he has a right to insist on their efficacy, in destroying the opposite claim.
    The propriety of these remarks is the more obvious from the following consideration, namely, that the court is to pronounce, whether the plaintiff, or defendant, is entitled to the matter in controversy; which they cannot do, if the whole evidence is not stated: Especially as it seldom happens, that the demurrer is argued the same term, in which it is filed; and therefore whether they be the same, or other judges, they can know nothing of the matter, unless the whole testimony appears of record. Thus far on principle:
    II. But upon authority the point is equally clear.
    *A demurrer to evidence maybe defined to be, on allegation of the de-murrant, which, admitting the matters of fact alleged by the opposite party, shews, that, as set forth, they are insufficient in law for the adversary to proceed upon, or to oblige the demurrant to give any, or a further answer thereto; either because they are, in point of law, defective in themselves, or are, in law, destroyed by countervailing testimony. It is thus described by Sir William Blackstone, ‘ ‘But a demurrer to evidence shall be determined by the court, out of which the record is sent. This happens, where a record or other matter is produced in evidence, concerning the legal consequences of which there arises a doubt in law; in which case the adverse party may, if he pleases, demur to the whole evidence; which admits the truth of every fact that has been alleged, but denies the sufficiency of them all, in point of law, to maintain or overthrow the issue; which draws the question of law from the cognizance of the jury, to be decided (as it ought) by the court. ” This passage proves expressly his own opinion to have been, that it was necessary to state all the evidence. Because he says, that the party may demur upon the whole evidence ; which, admitting the facts, denies the sufficiency of them all to maintain or overthrow the issue.
    This agrees with the doctrine laid down by the court in the case of Wright v. Pynder; the statement of which according to Allens report of it was as follows, “In a trover and conversion brought by an administrator ; upon not guilty pleaded, the defendant upon the evidence confesses, that he did convert them to his own use; but further saith, that the intestate was indebted to the King, and that 18 May. 14 Car. it was found by inquisition, that he died possessed of the goods in question ; which being returned, a venditioni exponas was awarded to the sheriff, who by virtue thereof sold them to the defendant. And to prove this, the defendant shewed the warrant of *the Treasurer, and the office book in the exchequer, and the entry of the inquisition, and the vendit-ioni exponas in the clerk’s book; to which the plaintiff saith, that the matter alleged is not sufficient to prove the defendant not guilty; and that there was no such writ of venditioni exponas. And the defendant saith, that the matter is sufficient, and that there was such a writ.”
    In this case, according to Styles 34, “Rolls, Justice, took two exceptions to the pleading; (meaning the demurrer; because the plea was not guilty;) 1. Thai the goods mentioned in the schedule appear not to be the same contained in the declaration. 2. No title is made to the indenture by him, who brings the action, and concluded upon the whole matter that the demurrer was not good, and that there ought to be a venire facias de novo, to try the matter again. Bacon, Justice, much to the same effect, but differed in this, that there ought not to be a venire facias de novo, but said, that judgment ought to be given against one party, to wit, the defendant, for ill joining in demurrer, to the intent, the party that is not in fault may be dismissed, and the parties here have waived the trial per pais by joining in demurrer. But Roll answered that no judgment at all could be given, for both parties be in fault, one by tendering the demurrer, the other by joining in it, and the defendant might have chosen whether he would have joined or no, but might have prayed the judgment of the court whether he ought to join.”
    Here both judges agreed that the demurrer was bad, in not ascertaining the goods, and setting forth the plaintiffs title to the indenture: They differed, indeed, as to the judgment to be given ; one of them thought, there ought to be another venire facias; the other that there ought to be judgment final; but both opinions were grounded *on the imperfection of the demurrer. Taking either opinion, however, to have been the correct one, and it equally proves, that the court were right in rejecting the demurrer in the present case. For if a new venire facias ought to have gone, then the court were not bound to receive a demurrer, merely for the form of setting it aside again; and if there ought to have been final judgment, again,st the tenants, for joining in an insufficient demurrer, that alone is a proof, that the court ought not to have received the demurrer, and compelled the defendants to join. In point of fact, however, a venire facias was actually awarded as appears by Allens report of the case.
    We have then, both the opinion of a most able commentator, and an express decision of the court, that it is necessary for the demurrant to state the whole evidence, and to shew a complete title. They are therefore authorities in the very point; and decide the present question, without any necessity for a further-enquiry.
    But, as the point is of importance, it may be' Worth while, tO investig-ate it a little further; and to examine precedents, upon the subjeOt, in books of entries: Because the forms of pleadings are always considered as evidences of the law.
    In Rastalls entries 148, pi. 12, there is a demurrer to evidence to the following effect:
    “And upon this; the aforesaid D. G. and M. shewed in evidence to the jurors aforesaid,' to'verify'and prove the issue aforesaid, oh their part, to wit, (as in the evidences;) and the aforesáid I. B. and B. to verify and prove the issue aforesaid, on their part, to wit, that they had not entered into the tenements aforesaid, with the, appurtenances, shewed in evidence' to the jurors aforesaid, and say &c. (as in the evidences). And the aforesaid G. and'M. say, that they to the matter aforesaid, by the said' I; *B. and' B. above in evidence to the jurois aforesaid shewn &c.”- Going on to conclude the demurrer. Which clearly proves, that the evidence, on both sides, is to be inserted. For such is the mode pursued in that form; as it first, states' the evidence of D. G. and M. and then that of I, B. and B.
    This precedent agrees with the language contained in the first mentioned books; and ' the whole of them expressly supports the propriety of the doctrine laid down by this Court in the casé of Hoyle v. Young, 1 Wash. 152'. ' ' '
    In which the President, In delivering the resolution of the Court, says, “We think the proper rule is to allow a -demurrer to evidence at any time' before the jury retire, although the party demurring may have examined witnesses on His part, the whole evidence on both sides being stated; which in all cases ought to be done unless the Court think the case clear against the party. In which case, the books agree, that the Court may refuse to receive the demurrer. In this case, the opinion of the Court as to this point-was right, 1st, because the whole evidence was not stated, and 2dly, because we think the case was not clearly against the defendant.” This case therefore confirms the others; and leaves the question no longer doubtful.
    So that it may now be considered as a fixed rule, that in every case, the demurrant must insert the -whole evidence; in order that the Court may judge whether all of it is sufficient to maintain the issue.
    But it is more necessary' still in a writ of' right-.-
    1, Because no other action remains to redress the error, if one intervenes in the trial of the cause.
    ■ *2. Because the court ought always to instruct the'jury'on the trial of a writ of right, Co. Lift. 293; and, by analogy, they ought to be able,' on executing a writ of enquiry, after a' decision of,the demurrer, to say to 'the jury, that, upon the whole evidence, the fight was with' the tenant. But this they 'cannot db, if the evidence is not stated.
    As therefore a faulty demurred was offered, and as that demurrer did not shew title in the demandant, the County Court did right in refusing to receive it.
    In consequence of the various decisions in this court, that a demurrer to evidence cannot be used as a bill of exceptions, it becomes unnecessary to add any thing on the subject of non tenure. Therefore I shall only observe, that the act of Assembly,' to avoid difficulties on the trial, seems to have intended, that every thing, which would destroy the demandants action, might be given in evidence at the trial of the mise, upon the mere right. And it can never be right to say, tha't the demandant should recover lands to which he had no title, upon a mere slip in the pleadings. Besides, in Euers pleadings 321, non tenure is expressly called a plea in bar; and if so, it ends that question.
    Williams contra.
    I do not mean to controvert the doctrine on demurrers to evidence. But non tenure, upon this issue, was clearly absurd . and improper. In a demurrer to evidence, every thing, which may be inferred, is admitted, and, if the objection that the demandant was not the Robert Green mentioned 'in the will, be, at all, founded, it might have been corrected by the judges notes; or the court will now-set aside the proceedings, in order to supply the evidence.
    Cur. adv..vult.
    
      
      Demurrer to Evidence — Who Hay Demur — Joinder in Demurrer. — The principal cape is cited in Clark v. R. & D. R. Co., 78 Va. 713, for the proposition that either party, plaintiff or defendant, has a right to demur to the evidence, and the other party will he compelled to join in the demurrer unless the case he plainly against the demurrant, and his object in demurring seems to he clearly nothing else hut delay. See foot-note to Rohr v. Davis, 9 Leigh 30. The principal case is cited in this connection in Green v. Judith, 5 Rand. 10, 11. 17; Hyers v. Wood, 2 Call 586, 588. See generally, monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
   LYONS, Judge.

Delivered the resolution of the Court, that the judgment of the District Court was erroneous, and to be reversed ; and that of the countj* Court affirmed.

*As thé Court did not explain the grounds upon, which the judgment was given in the íast case; and as the following is a case upon nearly the same title, and some of the judges in giving their opinions on i't, stated the ground of decision in the last, I have thought it would be agreeable to the reader to publish it at this time; although not decided until two terms afterwards.  