
    David Ross v. Erasmus Gill and Sarah, His Wife.
    April Term. 1792.
    Guardian and Ward — Lease of Ward’s Lands — Payment of Rent. — A guardian may lease the lands of his ward, during infancy, if the guardianship so long continues, and may reserve the rents to the ward or to himself: and payment of the rent, in either case, to the guardian, -would he good.
    Debt for Rent — Verdict—Judgment—Release.—In debt for rent, the debt was for 4901., the debt in the declaration mentioned, and 1301. 19s. 3d. damages. Judgment for the same to be discharged by the payment of 4201. The latter is no part of the judgment. and is to be considered as a release of the difference.
    Nonsuit — Right of Court to Direct. — The court may recommend a nonsuit, but cannot direct it to be entered, against the will of the plaintiff. •
    Evidence — Province of Jury,  — The jury, and not the Court, are to decide on the weight of the evidence.
    Debt for Rent — Plea—Nil Debet. — if the tenant has enjoyed the land uninterruptedly under the lease, the plaintiff is entitled to recover, whether he had a title to the land or not.
    This was an action of debt determined in the District Court of Petersburg in favor of the appellees, the plaintiffs in that court. The declaration demands ¿£490, and contains two counts. The first states that Eucy Newsum, the guardian of the female plaintiff, then an infant, and unmarried, did demise the premises for which the rent is *claimed, whereof the said Sarah at that time was seized in her demesne as of fee to the said Ross, to hold from the first day of January 1776, till the said Sarah should marrj* or attain the age of 21 years which ever should first happen; yielding to the said Sarah ¿70 a year. — It states the entry thereupon and enjoyment for eleven years: — “that afterwards, to wit on the first of June 1786 the said Sarah being still an infant, intermarried with the said Erasmus, and ¡£490, for the rent for 7 years ended the 1st of January 1787, to the said Erasmus, and Sarah, after the demise of the said premises to the said David,'and after the espousals between the said Erasmus and the said Sarah celebrated, —were in arrear and yet are &c. whereby action accrued to the said plaintiff, &c. Nevertheless the defendant hath not paid &c.” '
    The second count states a demise made by the plaintiff Sarah who was then a feme sole, of other lands to the defendant, to hold so long1 as both parties should please, yielding the yearly rent of .£70. — also the enjoyment thereof for eleven years by the defendant — -the marriage of the plaintiff, and the same sum of £490 in arrear and unpaid “whereby action accrued to the plaintiffs, &c. nevertheless &c. ” the damages are laid at £800. Plea, owe nothing.
    At the trial, a motion was made by the defendant, for a nonsuit; which the court refusing to direct, a bill of exceptions was filed, stating, that the plaintiffs gave in evidence a memorandum in writing, signed by Joseph Jones, in behalf of one Buey Newsum, bearing date the 27th of January 1776, in these words to wit: “That David Ross shall occupy and possess the houses and plantations belonging to the estate of Peter Jones, from 1st of January 1776, until the heir shall marry, or come to age; but be at liberty to give it up, at the expiration of any of the years, giving three months previous notice; to pay £70 per annum; to leave the plantation in tenantable repair; to commit no abuses in cutting fire-wood, nor get more rails than necessary to repair the fences from time to time. Should the heir when of age, or married, want the said houses and plantation, to give the like notice of three months, before the expiration of the year; otherwise the said David to remain in possession, till the ensuing year, on the aforesaid termsThat the plaintiffs also ■ proved by a witness, as well as by letters of the defendant, that a verbal contract was entered into between the mother of the plaintiff with the defendant, as stated in the declaration, of which the defendant took the above memorandum, written by *hitnself, and signed by Joseph Jones: That in pursuance of the agreement aforesaid, the defendant entered into, and was possessed of the demised premises, but that they produced no proof of any contract'between the plaintiffs and the defendant, other than as above, or that the memorandum aforesaid was ever assigned to the plaintiffs, otherwise than as stated in the declaration: and this being the only evidence in the cause, to prove the terms on which the defendant held the lands, Or to support the claim for rent; the defendant moved for a nonsuit, &c.
    The jury find that the defendant “doth owe the debt in the declaration mentioned,’-’ and assess the damages to £130: 16: 3. • '
    The judgment is, that the plaintiff recovered against the defendant £490, the debt in the declaration mentioned, and their costs', but to be discharged by the payment of £420; together with the damages aforesaid and the costs.
    
      
      Guardian and Ward. — See monographic note on “Guardian and Ward” appended to iiarnum v. Frost, 17 Gratt. 398.
    
    
      
      Debt for Rent — Verdict—Judgment.—The principal caséis cited in foot-note to Johnson v. Jennings, 10 Gratt. 1; Lewis v. Long, SMunf. 158: Cooke v. Wise, 3 Hen. & M. 487, 497; Eib v. Pindall, 5 Leigh 118; Northwestern Bank v. Fleshman, 22 W. Va. 328, See monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118; mono-graphic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      Nonsuit — Right of Court to Direct. — For the proposition that the court may recommend a nonsuit, but cannot direct it to be entered against the will of the plaintiff, the principal case is cited in Gunn v. Ohio River R. Co., 36 W. Va. 176, 14 S. E. Rep. 468. See also, Thweal v. Finch, 1 Wash. 217; monographic note on “Judgments" appended to Smith v. Charl-ton, 7 Gratt. 425.
    
    
      
      Evidence —Weight— Province of Jury. — For the proposition that the jury, and not the court, are to decide upon the weight of the evidence, the principal case is cited in the following: Blincoe v. Berkeley, 1 Call 412; foot-note to Bogle v. Sullivant, 1 Call 561; Moore v. Chapman. 3 Hen. & M. 266; Brooke v. Vonng, 3 Rand. 114; foot-note to Grayson v. Com., 6 Gratt. 712: foot-note to M’Dowell v. Crawford, 11 Gratt. 377: Whitelaw v. Whitelaw, 83 Va. 43, 1 S. E. Rep. 407: State v. Hurst, 11 W. Va. 75; Nicholas v. Kershner. 20 W. Va. 263; State v. Thompson, 21 W. Va. 756; State v. Heaton, 23 W. Va. 793; Gwynn v. Schwartz. 32 W. Va. 494, 9 S. E. Rep. 883: State v. Morgan, 35 W. Va. 273, 13 S. E. Rep. 389; Neill v. Rogers Bros., etc.. Co., 38 W. Va. 231,18 S . E. Rep. 564; State v. Musgrave, 43 W. Va. 678, 28 S. E. Rep. 816; Lloyd v. Scott, 15 Fed. Gas. 726. See mono-graphic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
   The PRESIDENT.

A doubt was started at the bar whether two counts could properly be laid in debt for rent; at least without demanding the amount of the two rents claimed in both counts. But a precedent of a similar kind was produced, and as the record states that no evidence was given on the second count, the court are satisfied that that count may be thrown out of the case as mere surplusage.

An objection was made, that the verdict finds that the defendant owes the debt in the declaration mentioned; and there being two counts for the same sum, there is nothing to guide the court in referring the finding to the one or the other.

The bill of exceptions furnishes an easy answer to this objection, by stating that no evidence was given upon the second count, and that full evidence was given upon the first. Of course the verdict obviously refers to that, to which the testimony applied, and considering each count as a distinct declaration, the expression is by no means doubtful or improper, particularly as the second count appears to have been abandoned by the parties.

The court were certainly right in rejecting the motion which was made; as we are of opinion that they had no power to direct a nonsuit, however destitute the plaintiff might be of a right to recover. They may advise it, and may direct the plaintiff to be called; but if he refuse to suffer a non-suit, the court can no otherwise protect and enforce their opinion, but by awarding a new trial, in case the jury have found against their direction. Consequently a refusal in the court to direct a nonsuit, cannot be a ground of exception.

*If the court admit improper evidence, an exception may be taken to their opinion; but if the question depend upon the weight of testimony, the jury, and not the court, are exclusively, and un-controulably the judges.

This question then must turn upon the whole evidence, as well the parol as the written. The plea is nil debet; and it was insisted at the bar, that nil habuit in tenementis could not be given in evidence —This is a point which need not be now decided, since the lessee having uninterruptedly occupied and enjoyed the land; he cannot avail himself of a want of title in the plaintiff, if the fact were, that she had none; it would have been otherwise if eviction had been proved.

But the bill of exceptions, tho’ it does not set forth the parol evidence at large, states generally the weight of it, and that it proved a parol demise as laid in the declaration. This aided by the verdict, sufficiently establishes the title of Sarah, to the premises, and the demise of them, by her guardian, to the defendant.

There is no doubt but that a guardian may lease the lands of the ward during infancy, if the guardianship so long continue : and in this case, the demise being from year to year, if another guardian had been appointed, the term would have ceased. The reservation of the rent to the infant was proper, and cannot be likened to the case of a reservation to a stranger: for the inheritance being in the ward, there is a privity between her and the lessee, and therefore there is no doubt of her right to maintain an action of debt, to recover the arrears of rent. It is true that the guardian may, by a lease in writing, reserve the rent to himself to cover advances which he may make for the use of the ward; and in that case the action must be brought in his own name, unless he assign the lease to the ward. The reason why the ward cannot in such a case maintain the action is, that, as he must declare upon the written lease, there would be a variance between the allegation, and the proof. But in either case, there is no doubt but that a payment"of the rent to the guardian, during the continuance of the wardship, would be a good discharge of the tenant for so much.

We find no error therefore until we come to the entering up of the judgment. The verdict is for .£490 the debt in the declaration mentioned and £130: 16: 3, damages and costs. The judgment is for the same, but to be discharged by the payment of ¿420.

*This latter part we do not consider as being any part of the judgment, but merely surplusage. Eor as there is no penalty in the case, the law does not warrant such an entry.

As the plaintiffs do not complain of this /reduction, we consider it as a release of so much by them, and as it is for the benefit of the defendant, he cannot object.

Judgment affirmed.  