
    Wroe v. Washington, Butler and Nevison.
    October Term, 1794.
    Biffs of Exception — Effect as a Demurrer to Evidence.— A bill of exceptions cannot be considered as a demurrer to evidence. Iu the latter, the Court may, if the case be clear, refuse to compel the other party to join, and may instruct the jury, or leave the question with them.
    Non-Suit — Right of Court to Compel. — The Court cannot compel the plaintiff to suffer a non-suit:
    
      Pleading and Practice — Declaration —Variance—Case at Bar. -Declaration statin:1; an agreement that the plaintiff would rent and furnish a house at h., and board the defendant and his Clerks for so much each. The agreement proved was, that he would board the defendant and his Clerks at G. for the sums stated in the declaration. The variance is not material.
    This was a special action on the case, brought by the appellant against the appel-lees in the County Court of Westmoreland. The declaration slated an agreement between the appellant and the appellees, that the former should rent arid furnish a house in Xveeds Town, and entertain one of the appellees, two of their store keepers, and a servant, with meat and drink for one year, for which, the appellees agreed to pay him, for the three first, ^25 each, for the. last _£8; and that, in consideration of the appellant’s having undertaken to rent and furnish a house, and to entertain the said four persons as aforesaid, the appellees promised to pay &e. and avers performance oil his part &c. The breach assigned is in the non-payment of the stipulated sums. Plea, non assumpsit. The appellees at the trial, moved for a nonsuit, because t'he 'evidence did not correspond with the declaration, which being over-ruled, they filed a bill of exceptions, stating-, “that the plaintiff did not prove that any contract had been made between the plaintiff and defendants respecting the renting of a house in Leeds Town as mentioned in the declaration, on the contrary it appeared by a witness, that the plaintiff had applied to the defendants upon this subject, informing them, that he had rented a house in Leeds Town for the purpose of taking boarders, and requested the defendants to board their assistants with him: that there was no proof of any application having been made by the defendants to the plaintiff touching tne board of the said assistants in Ihe town of Leeds, before the offer was made as aforesaid by the plaintiff to the defendants, nor did it appear in evidence, that any other contract had been made between the parties except such as is above stated. Whereupon the defendants did object, that no such contract as that laid in the declaration had been proved, and *moved for a nonsuit.” The court refused to nonsuit the plaintiff, because it appeared that the price at which the assistants were to be boarded by the plaintiff ivas ^83 per annum. The jury, found a verdict for the appellant, and upon an appeal to the District Court, the judgment was reversed, and a nonsuit awarded, from which the plaintiff below appealed to this court.
    Marshall for the appellant.
    The 1st question is, if the variance between the declaration and the evidence be material. 2dly, If material, whether the .Inferior Court erred in the judgment which they gave.
    1st, The variance is certainly not a substantial one, since, whether the agreement was to board, or to rent and furnish a house and board, the appellant in either case, was entitled to the stipulated sum, and no more is claimed. The renting and furnishing of a house were circumstances entirely unconnected with the services 1o be performed by the appellant, and for which alone, he was to be paid.
    2dly, The motion made was for a nonsuit. It has been so repeatedly decided in this place, that a plaintiff cannot be compelled to suffers nonsuit, that the judgment below will surely not be reversed, because that was refused which this court has declared ought not to have been directed. If the court had given an improper direction, or opinion to the jury, it would be subject to the correction oí this court? But that was not done. The Inferior Court decided properly upon the point submitted to them, and their judgment was therefore improperly reversed.
    Washington for the appellee.
    If the contract laid, be proved to be made upon a different consideration, from that stated in the declaration, or on that and some other, the variance is fatal. Bull. Ni. Pri. 147. In Gilb. Law of Evid. 183, it is laid down “that in all special actions on the case, the allegata and probata must correspond; for since in verbal contracts where the identity is not clearly ascertained in the declaration, and where it cannot be otherwise known till the trial, if a latitude were allowed that contracts might be considered as the same, which did not substantially differ, no man by the allegation could prepare for his defence.”
    These rules of law are in strict conformity with the real and substantial purposes of a declaration; which are, 1st, to apprize the defendant of the nature oí the charge, and 2dly, to enable him by. a reference to the record itself, to plead the judgment in *bar to a second action, for the same cause. To discover whether the variance in this case be material or not, let me suppose that there had been at one time such a contract as is stated, and at another, such a contract as is proved, and this is at least a possible case. Suppose a judgment obtained upon the contract as stated, and another action brought some years alter upon the contract as proved ; could the former judgment be pleaded in bar? surely not. Again; suppose the defendants had had a witness material for them as to the first contract, and another as to the second: when the plaintiff found the defendants prepared to meet him upon the contract as laid, he had only to shift his ground at the trial, and prove the second contract, upon which he discovered the defendants were unprepared. By strictly requiring a close correspondence between the allegation and the proof, the plaintiff can never be injured, because knowing his own case, it must be his own fault if he místate it. But infinite mischief will ensue from breaking in upon the rule, since we are then at,-,sea, at the mercy of nice and capricious distinctions, without any certain guide to direct us.
    The variance is said not to be material, because in either case, the appellant was entitled to ^83, and for this he has brought his action. But if the plaintiff state what he might with propriety have omitted, yet having stated it, he must prove it, for otherwise the cases are not the same. The case of Bristow against Wright and Pugh. Dougl. 665, is a complete answer to this argument, and the doctrine is fully and ably stated by lord Mansfield. That was an action by a landlord against a sheriff under the statute, for levying an execution on his tenant, without pajdng him a year’s rent, which in the declaration was stated to be payable annually. On evidence it turned, out, to be payable quarterly, and the variance was considered as fatal. Now this variance was quite unimportant to the sheriff, since the action was brought for the year’s rent, and more could not have been recovered, whether it were payable in one way, or in the other. It was agreed, that the mode of payment was unnecessarily set forth, but being stated, it should have been proved.
    Should it be argued, that in the case at bar-, the declaration is broader than the proof, and therefore the variance favourable to the appellees, I answer, so it was in the case reported in 1 Ld. Ray. 735 where the promise laid, was to deliver good merchantable wheat, and that proved, was to deliver good second sort of wheat which was decided to be a fatal variance.
    Another variance equally material is, that the agreement laid, is to pay ,£25 for 3 persons each, and ,£8 for a servant, and that proved, is to pay a gross sum of ^83.
    *1 consider the second point as being more diffieult and more important. —The decision of this court are relied upon, and it is contended, that however the case might have been, if the motion had been more regular, yet in the shape in which it was made, the judgment must be affirmed. But if the court perceive from this record, that the appellant ought not to recover upon the principal point, it is strange to say, that he shall have the benefit of the judgment, because the appellees happened to make a collateral motion which was irregular.
    Suppose for a moment, that this motion had not been made; how would the case have stood, if the appellees instead of proceeding as they did, had demurred to the evidence? If the variance be material they must have prevailed. I then submit it whether in substance this be not a demurrer to evidence, whatever it may be in form? An attention to the distinction between a bill of exceptions, and a demurrer to evidence will be important. The first is founded upon an objection to the admission of improper testimony; The judgment of the court is, that the evidence is, or is not, proper, and if it be improper a new trial is awarded. The latter admits the competency of the evidence, as well as the verity of it, but objects, that it is insufficient to maintain the issue; and in this case, the whole evidence must be stated, in order that the court may decide whether it be sufficient or not. The judgment is final, either for the plaintiff or defendant, and the verdict, which is a conditional one, stands or falls with that judgment. Now apply this definition to the present case. All the evidence which was given is spread upon the record, and it is further stated, that certain other facts were not proved. But the fact not proved was the very thing essentially necessary to have been established in support of the issue. This court then have it in their power to give a final judgment and to say, either that the issue was, or was not supported by the evidence. In the case of Keel and Herbert v. Roberts in this court, where the plea was non-as-sumpsit within five years, a bill of exceptions was filed, stating three depositions verbatim, from which it appeared that those deponents did not prove an assumpsit within five years. It was contended at the bar that this, though a bill of exceptions, in form, might be considered as a demurrer' to evidence, since it stated the whole evidence. Your honor in delivering the opinion of the court, observed that the question was, whether this was to be considered as a demurrer to evidence; which could never have been a question if the form was material to give the name. The cause was sent back for a new trial, and I presume for this reason, that the whole *case was not stated, for notwithstanding three witnesses might not have heard an assumpsit within 5 years, there might have been other witnesses examined who did. If then the motion for a nonsuit had not been made, and this court have found enough stated in the record to satisfy them, that judgment ought to be given for the appellees, what alteration will that motion make? The motion was merely collateral, and the appeal is not from that, but from the final judgment, which I have endeavored to shew was erroneous, and which is either to be affirmed, or corrected here. And if the final judgment be wrong, will this court affirm it, because the counsel propounded an improper question to the court? This would be sacrificing substantial justice to considerations of mere form. But what is this court now to do? They must either give judgment for the appellant, award a new trial, or give judgment for the appellees. The first cannot be done, because it appears upon the face of the record that the appellant ought not to recover. Will they do the second? If they do, it will be a vain thing, since it is evident that the appellant upon this declaration cannot ultimately succeed. But the court may reverse the judgment of the District Court because it awarded a nonsuit; also the judgment .of the County Court, and direct it to be entered for the appellees, upon the ground that the appellant ought not to have recovered upon the evidence. : : l
    Marshall in reply.
    The case from Ed. Ray, is not like the present. The variance there was material, since the price of the wheat not being fixed, it would depend upon the quality of it, and therefore it was essential in fixing the quantum of damages which the plaintiff was entitled to recover, whether it were of the first, or of the second quality. But in this case, whether the agreement was as it is stated in the declaration, or as it turned out in proof, still the appellant was entitled to ¿83, and to no more, nor less. If this action had been for damages, on account of the appellees refusal to board the four persons with the appellant, the variance might have been material, since those damages ought in that case to have been proportioned to the inconvenience and loss which the appellant sustained by providing himself with the means of accommodating the boarders. i ,
    Upon the second point, I would ask, -whether it be possible to liken a bill of exceptions, to a demurrer to evidence? They are different in form, in their consequences, and in the conduct of the parties. In the former, the parties still proceed to a trial of the issue; in the latter, the jury are discharged immediately, or find a conditional verdict only. In the former, the question is ^brought before the court upon the motion of the objecting party only; in the latter, by the act of both parties, since the demurrer offered by the one, is joined by the other. In the former, either party has a right to the benefit of his exceptions before a Superior Court; in the latter, the court, if the case be clear, may refuse to compel the other party to join the demurrer, and leave the whole question to the jury. The judgment upon reversal in the one case is for a new trial, in the other, it is final and conclusive. But the order of nonsuit is not conclusive; the plaintiff is not obliged to submit to it, and if he do, he may re-institute his suit, and recover upon better evidence. But the final judgment is a perpetual bar. As to awarding a new trial, the court is not bound to do it against the justice of the case; for if in this cause, the appellant should fail, it must be, not because the justice of the case is against him, but because of a mere slip in his attorney in stating it.
    
      
      BiiIs of Exception — Effect as a Demurrer to Evidence. —On this question the principal case is cited and approved in foot-note to Keel v. Herbert, 1 Wash. 203; Smith v. Segar, 3 Hen. & M. 397; Lovell v. Arnold, 2 Munf. 176; Hollingsworths v. Dunbar, 5 Munf. 199; Brooke v. Young, 3 Rand. 116; O. & O. R. Co. v. Sparrow, 98 Va. 632, 37 S. E. Rep. 302.
      Demurrer to Evidence — Joinder.—In Green v. Buckner, 6 Leigh 83, it is said: "There was no reason why "the defendants should not have been compelled to join in the demurrer to evidence. The evidence demurred to, was not plainly against the demurrant, and therefore does not come within the influence of the decisions of Thweat v. Pinch, 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.” The principal case is cited on this question in footnote to Trout v. Va. & Tenn. R. Co., 23 Gratt. 619. See monographic notes on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887, and “Demurrer to the ¡evidence” appended to Tutt v. Slaughter, 5 Gratt. 8M.
    
    
      
       Pleading and Practice —Declaration—Variance.— The principal case is cited in Brooks v. Scott, 2 Munf. 317.
    
   The PRESIDENT

delivered the opinion of the court.

This court having decided, that the plain-till cannot be compelled to suffer a nonsuit, the counsel for the appellees acknowledged that the judgment of the District Court must be reversed, but he has insisted, that the bill of exceptions should be considered as a demurrer to evidence, and that the variance between the case stated and that proved, being material, the court ought to reverse the judgment of the County Court.

In the case of Keel and Herbert v. Roberts, this court decided against the doctrine of taking a bill of exceptions for a demurrer to evidence; but the counsel endeavored to distinguish that case from this, on account, of the whole evidence being stated in this,

whereas there was in that only a partial recital of the evidence, and says that the reason which governed the court in that case was founded upon this distinction. Whether this was the only reason assigned by the court, I cannot ascertain, not having my notes with me; but the Judges recollect that their discussion went farther, and that they considered the two modes of proceeding as being so totally dissimilar, that the one could not be considered as answering the purposes of the other. On a demurrer to evidence, the court may refuse to compel the other part}' to join, and may either direct the jury as to the sufficiency of the evidence, or in a clear case, may leave it to the jury to decide upon, as the court seem to have done in this case. We cannot therefore consider this as a demurrer to evidence. The counsel for the appellees then insists, that the variance between the declaration and the proof is so material, *that this court cannot give judgment for the appellant, or affirm the judgment of the County Court; since in all special actions, the plaintiff must prove his case, precisely as he has stated it; that if he fail to do so, he cannot recover, although he should prove another contract entitling him to the same relief, because such recovery would be no bar to a new suit founded upon such other contract. The cases cited for this purpose do not apply to the present. In those, the two contracts are entirely different from each other; such as good wheat, stated, and good wheat of a second quality proved — a lease reserving rent annually'staled, and reserving it quarterly proved. These were different contracts, and the substance of the one, was not comprehended in the other. We are not inclined to meddle with these decisions, nor bj' any means to extend them beyond their principles. But in this case, the proof extends to all the substantial parts of the contract as laid, and what it does not reach was wholly immaterial, and might as well have been omitted as inserted. But if it could be material, yet the evidence being stated in the bill of exceptions, and a general verdict found for the appellant, he would be barred from a future action, and the appel-lees would have it completely in their power to avail themselves of this recovery, by referring to the record. The appellant was to find the store keepers meat and drink for ^83; to do this, he must have a house, and whether he then had one, or was to procure one, or whether they solicited him, or he them for the contract, was wholly unimportant.

The judgment of the District Court must be reversed, and that of the County Court affirmed.  