
    Dunbar v. Beale.
    Argued January 27th, 1816.
    i. Demurrer to Evidence — Joinder.—If the case he clear against the party tendering a demurrer to evidence, the court may refuse to compel the other party to join.
    ***See Thweatt & Hintonv. Finch. 1 Wash. 220. S. P.
    3. Promise to Pay Debt of Another — Evidence of.— What evidence is sufficient to establish an acknowledgment of, and promise to pay, a debt by account.
    In an action for assumpsit, in the county-court of Fauquier, for goods sold and delivered, &c. (the declaration containing also a count upon an insimul computassent, and the plea being non assumpsit,) the plaintiff proved, by a single witness, that some time ago, (the precise time he did not recollect, he met with the defendant, in the court house yard, on a court day, and called upon him to execute his bond to the plaintiff, for a large account, amounting to about 1261. ; to which the defendant replied, that he expected to receive some money, for land which he had sold, in about six weeks, when he would go down to the plaintiff and settle the account with him, and would pay it off. The witness believed that he showed the defendant the account, (but of this he was not certain,) and that the defendant did not then examine the account, (which was composed ■of a large number of items,) but made no exceptions to it.”
    This being all the evidence exhibited to the jury, the defendant offered a demurrer to the evidence, in which the plaintiff refused to join ; whereupon the defendant by his counsel moved the court to compel him to do so, which motion was overruled by the court, upon the ground that the “matter offered in evidence in manner aforesaid, was too plain.” The defendant excepted to the court’s opinion, and, a verdict being found and judgment rendered against him, appealed to the Superior Court of law. The judgment was there reversed, and the verdict set aside, with a direction that the plaintiff do join in the demurrer. By consent of parties, the cause was retained in that court for farther proceedings; and, the demurrer to the evidence being argued, judgment was pronounced in favour of the *defendant, “that the plaintiff take nothing,” &c. ; from which judgment, the plaintiff appealed to this court.
    
      
       Demurrer to Evidence — Joinder.—In Green v. Buckner, 6 Leigh 88, Judge Brookenbrough said; “There was no reason why the defendants should not have been compelled to join in the demnrrer to evidence. The evidence demurred to, was not plainly against the demurrant, and therefore does not come within the influence of the decisions of Thweatt v. Finch, 1 Wash. 217; Wroe v. Washington, 1 Wash. 357, and Dunbar v. Beale, 5 Munf. 24. The evidence though parol, was not loose and indeterminate, but explicit, and admitted of no variance. It was, therefore, within the rule laid down by Judge Roane, in Hyers v. Wood, 2 Call 574. I am of opinion, that the circuit court, in this case, very properly required the defendants to join in the demurrer.”
      See further, foot-note to Trout v. Virginia, etc., R. Co,, 23 Gratt. 619; foot-note to Thweat v. Finch, 1 Wash. 217; monographic note on “Demnrrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
   Monday, January 29th, 1816,

JUDGE ROANE

pronounced the court’s opinion, that both the judgments of the Superior Court of law be reversed, and that of the county court affirmed.  