
    Humphreys’ Adm’r v. West’s Adm’rs.
    November, 1825.
    Demurrer to Evidencet — Question to Be Decided Thereon. — On a demurrer to evidence, the only question for the consideration of the Court, is, whether the evidence supports the issue, or not; and the judgment is, that it does or does not support it.
    Same-Disposal of Jury. — After the demurrer is joined, the jury may either be discharged. and (if the judgment be, that the evidence does support the issue) a wri t of enquiry of damages is awarded; or the jury, then impanelled, may assess conditional damages.
    New Trial--notion Necessary — Appellate Practice.  — A new trial, can only he had upon motion; as the Court is not bound ex mero mo tu, to grant a new trial. The appellate Court cannot grant a new trial, without such motion in the inferior Court.
    Executors — Personal Judgment against.  — A personal judgment against an executor or administrator, who is sued in his representative character, is fatally erroneous.
    Judgment — Ambiguities — Correction In Appellate Court. — If the j ndgment be ambiguous in its terms, the appellate Court cannot make it certain, upon the ground that the clerk of a County Court might have moulded it into form, because it was only an entry on the minutes.
    Certiorari — When Granted. — A certiorari ought not to be granted, to bring up a record, unless the Court have some reason to believe that a better record can be had.
    This was an appeal from the Superior Court of Augusta county. The cáse was this:
    *West brought an action on the case, in the County Court of Augusta, against the administrator of 'Humphreys. The defendant pleaded several pleas, which were afterwards withdrawn, except the plea of non assumpsit; and issue was joined on that plea. West having died, the suit was ■revived by consent, in the name of his administrators.
    The jury found for the plaintiffs the sum of 3581. 4 10, Maryland currency, equal in value to 2861. 11 10, Virginia currency, in damages, till paid, with interest, &c. subject, however, to the opinion of the Court, on a demurrer to evidence filed in the cause. It is unnecessary to state the evidence set forth in this demurrer. The plaintiffs objected to joining in this demurrer to evidence, because, they contended, that the evidence was plain; and because, before the demurrer was offered, the argument of the cause before the jury had proceeded so far, as that the counsel for the defendant had been heard, the counsel for the plaintiffs in answer, and the counsel for the defendant again, in reply. But the Court over-ruled the objection, and ordered the plaintiffs to join in demurrer. The plaintiffs excepted to this opinion.
    The demurrer being argued, the Court decided that the law was for the plaintiffs.
    The defendant then filed the following errors in arrest of judgment:
    1. The demurrer to evidence ought to have been sustained, instead of being overruled.
    2. A rule for security for costs having been granted, that security ought to have been given within 60 days, or the suit dismissed, and ought not have been received, the 60 days having expired.
    3. It does not appear who is the administrator of West, in whose name this suit is said to- be revived, that he has an administrator, or that administration has been granted in the Commonwealth of Virginia, on the estate of the said West,, or that there is any person to whom the defendant is, or can be, accountable in'this case.
    *4. There is no averment or affirmation in the declaration, each count being merely by way of recital.
    But the Court over-ruled these errors, and gave judgment for the plaintiff, for “3581. 4 10, Maryland currency, equal to 2861. 11 10, Virginia currency, damages, together with 6 per centum interest,” &c.
    On an appeal to the Superior Court, the judgment was affirmed, and the defendant appealed to this Court.
    Leigh, for the appellant.
    Johnson, for the appellees.
    October 29.
    November 3.
    
      
      Demurrer to Evidenee. — See monographic note on “Demurrer to the .Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364. See principal case cited in Stephen v. Swann. 9 Leigh 418.
    
    
      
      Same- -New Trial — Damages Excessive — Motion in Inferior Court Necessary — Appellate Practice.— Where there is a demurrer to evidence, a writ of inquiry of damages may be awarded, or the jury then impanelled may assess the damages conditionally, but, in either case, the question as to the quantum of damages is lor the jury, subject to the superintending control of the court to grant a new trial in case the damages awarded are excessive. But the courtis not bound to grant a new trial exmeromotu, this can be done only upon motion and, therefore, without such a motion in the trial court, the appellate court cannot grant a new trial, as that would be to reverse the judgment of an inferior court on a motion in the appellate court, which was not made to the lower court, and of course on a motion in which that court committed no error. As so holding the principal case is cited in Western Union Tel. Co. v. Va. Paper Co., 87 Va. 421. 12 S. E. Rep. 755; Briggs v. Hall, 4 Leigh 489, 490 (in this case it is said the decision in the principal case has never since been questioned); Green v. Judith, 5 Rand. 25; Newberry v. Williams. 89 Va. BOO, 15 S. E. Rep. 865; Norfolk & W. R. Co. v. Duunaway, 93 Va. 33, 24 S. E. Rep. 698; Shrewsbury v. Miller, 10 W. Va. 127; Railroad v. Foreman. 24 W. Va. 662; Danks v. Rodc-heaver, 26 W. Va. 292; Brown v. Brown, 29 W. Va. 778, 2 S E. Rep. 809; Proudfoot v. Clevenger, 33 W. Va. 268, 10 S. E. Rep. 395. But there is no necessity for a new trial in the trial court in order to have a judgment on a demurrer to evidence reviewed by the appellate court. N. & W. R. Co. v. Dunnaway. 93 Va. 29, 24 S. E. Rep. 698; Proudfoot v. Clevenger, 33 W. Va. 267, 10 S. E. Rep. 394. See further, monographic note on “New Trials” appended to Boswell v. Jones, 1 Wash. 322; monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
    
      
       Executors — Personal Judgment against. — A personal judgment or decree against an executor or administrator, or administrator de bonis non, who is sued in his representative character only, is fatally erroneous. Jones v. Reid, 12 W. Va. 370, citing principal case as authority. See principal case also cited in Lincoln v. Stern. 23 Gratt. 823. See further, monographic note on ‘‘Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   JUDGE COALTER,

delivered the opinion of the Court.

The Court is of opinion, that the only question for the consideration of the Court, on a demurrer to evidence, is, whether the evidence supports the issue, or not; and the judgment is, that it does, or does not, support it. After the demurrer is joined, the jury may either be discharged, and (if the judgment be that the evidence does support the issue,) a writ of enquiry of damages is awarded; or the jury then impanelled may go on to assess conditional damages.

But in either case, the question is with the jury, not with the .Court, as to the question of damages, subject, as in all other cases, to the superintending control of the Court, to grant a new trial in case the damages aré excessive. That, however, rests with the Court, before whom the trial was had, and that, too, upon a motion to that Court, for a new trial; there being no case in which that Court is bound, ex mero motu, and without motion, to grant a new trial, and subject the defendant, without his consent, to greater damages. The appellate Court cannot grant such new trial; for that would be to reverse the judgment of an inferior Court, on a motion for a new trial here, which was not *made to that Court, and of course, on a matter in which that Court committed no error.

The Court is further of opinion, tha.t the evidence in this case did support the issue, on the part of the appellee; and if there was nothing else in the case, the judgment of the Superior Court of Law, affirming that of the County Court, would be affirmed here.

But the Court is further of opinion, that the judgment of the County Court is not only very erroneous and imperfect, in point of form, but is fatally so in point of substance; it being a personal judgment against the appellant; and without deciding whether it ought to be reversed for error in form, were that the only error, it must be reversed for the latter reason, with costs.

After this decision was made, Johnson, for the appellee, suggested to the Court, that the judgment in tbe record was probably the entry on the minute book of the County Court, and ought to be considered as a judgment against the appellant, as administrator; and made a motion, the exact purport of which will be seen in the following opinion:

JUDGE COALTER,

delivered the opinion of the Court.

. The Court having given an opinion that both judgments must be reversed, because that of the County Court was personal against the appellant, which is in these words; “Judgment is therefore granted for three hundred and fifty-eight pounds, four shillings and ten pence, Maryland currency, equal to two hundred and eighty-six pounds, eleven shillings and ten pence, Virginia currency, damages, together with interest, &c. and the costs.” It was urged-by the counsel for the appellee, that this was probably the entry on the minute book of the County Court, and ought to be considered as a judgment against the appellant, as administrator; inasmuch as the clerk was justified, by that *miuute, to mould the judgment into proper form; and that if this could not be done, so as to affirm that judgment, in the form set out, a certiorari, or some other proceeding, ought to be resorted to, in order to have that judgment moulded into proper form, &c.

To support this application, the cases of Cogbill v. Cogbill, 2 H. & M. 477, and Cahill v. Pintony, 4 Munf. 371, were cited, to shew that this Court might resort to the original minutes of a County Court, in order to correct the judgment thereby.

The first of these cases does not seem to support the application. There the difference existed between the minute book, and order book, of the District Court, and the application to correct the latter by the former was refused, and the power of the District Court to do so, after the term, was denied by a majority of the Court.

In the latter case, the only error in the cause arose on a bill of exceptions to the admission of a deposition, as evidence to the jury. Had that deposition been actually read to the jury, there would have been error in the proceedings; but it was said that it was withdrawn by the party offering it, and never had been seen or heard by the jury: that this appeared from the record itself; and that, therefore, the bill of exceptions had nothing to do with the case. There was some ambiguity, however, in the record; and it was contended, on the other hand, that this was a mere certificate of the clerk, and formed no part of the proceedings or minutes of the Court. I find a memorandum taken by me of that case, in these words: “The memorandum of the tender of exceptions, &c. which- precedes the exceptions, we must presume, was put on the minutes, and from that we might fairly conclude, that the after part, relative to the withdrawal of Spring’s deposition, was also placed on the minutes, and is a continuance of the minute as to the exceptions. Judge Roane, however, doubting this, and as it may be, as he supposes, a mere certificate of the clerk, (in which case it would form no part of the ^record, it is agreed, that a copy of the minute shall be sent for; and if it is not a part thereof, the judgment to be reversed; otherwise affirmed.”

I have no recollection, whether it was agreed by the parties, or by the Judges, to send for a copy of the minutes. Cut in either case, the object was not to alter or amend them, but merely to ascertain a doubt arising on the record, concerning which we could not agree, whether the withdrawal of the deposition was a matter of record, or a mere gratuitous certificate of the clerk.

The case of Williams’ executor, &c. v. Strickler, 3 Call, 231, is much like this case. That was a suit against an executor, and the judgment affirmed by the District Court was, as in this 'case, personal against the executor. The appellee, after the cause was brought here, obtained a copy of the judgment from the County Court, which was de bonis testa!oris; but the District Court, without sending a certiorari to have the true judgment brought up, or without correcting the judgment before them, had affirmed it. This Court proceeded to reverse that judgment; but on the motion of the appellee, sent the cause back to the District Court, for that Court to obtain by certiorari, or otherwise, a true transcript of the record.

Suffice it in this case to say, that we know not whether a better record can be had or not; and that, moreover, it may not always be proper, and I think it would not be proper in this case, to send the cause back for that purpose. It might subject the appellant to damages pending the appeal here, when he has prevailed.

The judgment formerly directed, ought, therefore, to be entered.  