
    *Harrison v. Brock.
    Friday, March 9, 1810.
    i. Demurrer to Evidence — Joinder—When Not Compelled. — Although, upon a demurrer to evidence, the testimony adduced on both sides ought regularly to be stated, yet, if it be parol and contradictory, the party tendering the demurrer cannot, after exhibiting his testimony, compel the other party to join in demurrer; for this, in effect, would be to enable the demurrant to confer credibility on his own witnesses, or at least to carry their credibility tobe adjudged by an improper tribunal; the Jury, and not the Court, being exclusively judges of credibility.
    
      2. Evidence — Award Pendente Lite,  — An award made pendente lite, cannot be given in evidence upon the plea of non assumpsit.
    3. Pleading — Plea of “Arbitrament and Award” — Effect. —The plea of “arbitrament and award” (in so many words) is a mere nullity, and no evidence should be received to support it, notwithstanding the plaintiff replied generally.
    4. Appellate Practice — Reversal of Judgment — Admis= Sion of improper Evidence. — A judgment ought not to be reversed on the ground that the Court, at the instance of the party against whom it was rendered, admitted improper evidence, or erroneously compelled the other party to join in a demurrer to evidence.
    This was an action of assumpsit in the County Court of Amherst, by Josiah Harrison against Joseph Brock, for the carriage of tobacco and other produce by the plaintiff, a waterman, for the defendant, at his special instance and request. The declaration was filed in May, 1799; a common order against the defendant, for want of appearance, confirmed, and a writ of inquiry awarded, at June Rules, 1799, but afterwards set aside at May Quarterly Court, 1800, on the motion of the defendant, who pleaded “arbitrament and award;” (in those words only;) to which the plaintiff -replied generally, and the cause was continued at the defendant’s costs. At the ensuing November term, the defendant pleaded non assumpsit, “in addition to his former plea,” and issue being joined, a Jury was empanelled, but could not agree. In August, 1801, and May, 1802, verdicts were successively had for the plaintiff, but new trials awarded.
    At August term, 1802, a fourth Jury having been sworn, the defendant demurred to the plaintiff’s evidence, stating in his demurrer, “that on the trial of this cause it was proved that, some time about the 3d of August, 1798. the defendant was indebted to the plaintiff in the sum of 37i. 8s. 3d. for the carriage of tobacco and other produce; that on the day aforesaid, the plaintiff made application for payment thereof to a certain William Stevens, who was factor and storekeeper for the defendant, who was a merchant. Payment in money was refused; but Stevens told the plaintiff that he had a promissory note executed to the said Stevens by a certain Samuel 23 Holt, for the sum of 491. *6s. 3d., dated 11th May, 1798, and payable sixty days after date, with interest from the date if not punctually paid, and proposed trading the same to the plaintiif. Harrison agreed to take the whole of said note in payment; this was refused by Stevens; but it was at length agreed that Harrison should take the said note in payment, and execute his notes to Stevens for the difference between the said note of Holt and his claim against the defendant. Harrison accordingly executed two notes bearing the same date aforesaid, to the said Stevens in his own right, and not as agent, for Si. 19s. each. The note on Holt was then delivered to the plaintiff, and an entry was made by Thomas Woodroof, another agent and storekeeper for the defendant, in the books of the said defendant, by which Harrison Was charged to the said Stevens for the amount of Harrison’s claim against the defendant, and Stevens was credited for the same, and the said Harrison’s account was balanced, which said entry was read to the plaintiff by the said Woodroof, who asked the plaintiff if he agreed to it, and he replied he did. Those facts were proved by Thomas Woodroof alone, who also said that, at the time of the trade aforesaid, the note executed by Holt was not due, and that he the said witness was present, and heard the whole of the conversation relative to the said trade. Some short time afterwards Harrison presented the note to Holt for payment, which was not made. He immediately returned to Stevens, and wished him to take back the said note, which Stevens refused, alleging it was a fair trade. Holt was believed by many to be insolvent at the time of the trade aforesaid, and it was proved that Stevens himself believed hirn to be so, but at the time of the trade told Harrison he expected he would get the money upon application. It was also proved by a certain William Shelton that, some short time after the trade aforesaid, he was at the store of the defendant, when a dispute arose between the plaintiff and the said Stevens; that, on hearing them, he found that they differed as to facts; that he called upon the said Woodroof above mentioned to 24 *know if he was present, and heard the contract as to the note aforesaid; he then said he was not present the whole of the time, but was present when the entry aforesaid was made. Shelton also deposed that, previous to the trade aforesaid, he had told the said Stevens that Holt was insolvent. It was further proved that, some time afterwards, Harrison, the plaintiff, applied to the said Stevens, and told him that, if he would not take back the said note on Holt, he must assign it to him, which he positively refused. It was also said by the said Shelton, who had been long in the mercantile line, that it is not usual for merchants to call their customers to their day-books after making entries, and read the entries over, and ask them if they agree to the same. It was also proved by the said Shelton, that the said Stevens was to receive a liberal interest for all sums lent the defendant. It was also proved that the defendant had no personal agency, and no knowledge of the trade of the note aforesaid.”
    The demurrer farther stated, “it was proven by the defendant, that the matters in controversy in this suit were submitted to the determination of John Wyatt, William Ware, and Reuben Norvell, or any two of them, by an agreement entered into in the following words and figures, to wit: Whereas a dispute hath arisen and is now depending between Josiah Harrison, of the County of Amherst, of the one part, and Joseph Brock, of Orange County, of the other part, respecting the payment of a bond by William Stevens, as agent for the said Joseph Brock, which bond was payable from Samuel Holt to said William Stevens; now, for the ending and deciding thereof, thereby it is mutually agreed by and between the said parties, that all matters in difference between them shall be referred and submitted to the arbitrament, final end and determination of John Wyatt, William Ware, and Reuben Norvell, or any two of them, arbitrators indifferently elected by said parties, so as the said arbitrators, or any two of them, do make and publish their award in writing ready to be delivered 25 to the said parties, *or either of them, who may desire the same, on or before August Court next ensuing. And it is hereby mutually agreed by and between the parties aforesaid, that this submission shall be made a rule of the County Court of Amherst. In witness whereof, the parties to these presents have hereunto set their hands this 28th day of June, 1799. Josiah Harrison, (seal.) William Stevens, for Joseph Brock, (seal.) That two of the said referees did proceed to make up an award in the following words and figures, to wit: “We, the subscribers, mutually chosen by the parties to decide and determine a certain matter in dispute, between Josiah Harrison, of the County of Amherst, of one part, and Joseph Brock, of the County of Orange, of the other part, respecting a bond due from Samuel Holt to William Stevens, and which said bond was by the said Stevens given in payment of a debt due from the said Brock to the said Harrison, after maturely considering the testimony adduced, are of opinion, and do hereby award, that the said bond was received in payment, and ought to go (without recourse) to the extinguishment of the said debt. Given under our hands this 30th day of June, 1799. John Wyatt, Reuben Norvell;” which was duly delivered to the parties. The said award was made in the presence of both parties, both parties agreeing to the trial, and after hearing the testimony offered by each. It was proven by one of the arbitrators that, at the time of making up the award aforesaid, the plaintiff and the said Stevens, who was agent for the defendant, differed in their statement of facts; the plaintiff alleging, that there were certain facts known to the said Stevens, which he could not deny if upon his oath. The arbitrators had then made-up their opinion upon the subject, as expressed in the award aforesaid, but had not actually signed the award ; but, to satisfy the plaintiff, examined the said Stevens on. oath, previously observing to the plaintiff, that nothing that Stevens should say in favour of Brock should have any effect, but that, if he said any thing in favour of Harrison, it should be attended to. It was 26 *proven further by one of the arbitrators, that no impression was made on their minds by the examination of the said Stevens, but that they made up their award on the other testimony adduced by the parties; and that the principal cause which induced them to render the award aforesaid was, that evidence was produced to> them to shew that Harrison preferred the debt on Holt to his debt from the defendant, inasmuch as he, the said Harrison, believed that the circumstances of Holt' were better than those of Brock. It was proved that the attorney, who appeared for the plaintiff before the arbitrators, objected to the examination of the said Stevens as being illegal, but they did proceed to examine him merely to satisfy the plaintiff himself.”
    The plaintiff objected to joining in this demurrer, alleging, “there was a contradiction and clashing of evidence, and that the weight of said evidence and circumstantial proof ought to be determined by the Jury; which objection was overruled by the Court, and the plaintiff compelled to join in the demurrer, because it appeared to the Court that the facts adduced in evidence were fully and fairly stated in the demurrer;” whereupon the plaintiff filed a bill of exceptions. The Jury found a verdict for the plaintiff for 511. 5s. 6d. damages, subject to-the opinion of the Court upon the demurrer.
    At March Court, 1803, (the demurrer being argued,) the Court gave judgment for the plaintiff; but, upon a writ of supersedeas, this judgment was reversed by the District Court holden at Charlottesville; the reason assigned being, “that the award made between the parties should have been considered as final and conclusive;” and thereupon the plaintiff appealed to this Court.
    Munford, for the appellant.
    The County Court ought not to have ruled the plaintiff to join in demurrer; the evidence offered by him being parol and circumstantial, and testimony to contradict it being adduced by the defendant, instead of admitting its 27 truth as he ought to have *done.  But this being an error committed by the Court at the instance of the defendant, the plaintiff is entitled to the benefit of the decision, which was in his favour, and correct upon the merits.
    
      The plaintiff proved his claim in the first place. The defendant endeavoured to overthrow it by proof of delivery of a note. In such case, “the defendant must prove the agreement of the plaintiff to accept the thing delivered in satisfaction.’’ But, as to this point, the testimony adduced is doubtful. Thomas Woodroof is the only witness, and he unworthy of credit, having fold different stories at different times, and being strongly opposed by other circumstances. On a demurrer to evidence, the Court must presume any and every fact which the Jury might out of complicated testimony have inferred. The Court, in this case, might have inferred that the plaintiff was imposed upon by Stevens, in passing upon him Holt’s bond, knowing it to be good for nothing, and were therefore right in disregarding the pretended payment by the transfer of that bond.
    2. The plea of “arbitrament and award” was no plea, for reasons similar to those which influenced this Court to decide that the word “justification” was no plea in slander,  And though this was a mispleading, and the issue joined immaterial, the defendant, who was the party guilty of the first fault in pleading, has no right to take advantage of it.  A repleader ought not to be awarded, but the plea should be disregarded.
    3. The evidence of the award should not have been received on the plea of non assumpsit. By that plea, the defendant puts the plaintiff on proving the whole of his case, and entitles himself to give in evidence any thing which shews that no debt was due at the time the action was commenced.  Now, this award was made after the action brought, and should, therefore, have been specially pleaded, as a matter of defence arising puis darrein continuance. Besides, it could not be 28 a bar, without a rule of *Court. The agreement was, that the submission should be made a rule of Court; but "this was never done, and appears to have been neglected as much by the defendant as the plaintiff. It was not proved in Court by the affidavit of any witness thereto, (as the act concerning awards requires,) nor “entered in the proceedings of the Court,” nor was a rule thereupon made by the Court. Without such rule, it was a mere agreement to submit to arbitration, revocable by either party,  and not sufficient to oust the Courts of Haw or Equity of their jurisdiction,  A separate action might have been maintained for a breach of this agreement,  but it could not bar the plaintiff from proceeding in the suit then depending; neither could the Court have granted an attachment for not obeying the award entered thereupon,  Indeed, the failure to have the rule of Court made was an implied revocation.
    4. The award in this case was neither certain, mutual, nor final. It could be understood only by referring to other testimony of a parol and disputable nature. It was not mutual; for, while it went to establish the defendant’s claim to a credit, it did not settle the amount of the plaintiff’s account. Neither was it final; for it did not dispose of the suit at all. nor settle the question of costs. Besides, the testimony of one of the arbitrators proved that they received the illegal testimony of Stevens, which might have influenced one of them, if it did not the other.
    Botts, for the appellee.
    It may be collected from the record, that all the testimony, except that relative to the award, was introduced by the plaintiff. Suppose, therefore, the defendant’s evidence nothing, as he demurred, yet the contradictory facts disclosed in the plaintiff’s evidence were sufficient to destroy it. Probably the only witnesses who knew of his claim were those who also knew of its being satisfied by the transfer of Holt’s bond.
    It is said not to be sufficient for a demur-rant to demur in the forms usually practised, but he must “distinctly admit 29 *upon the record every fact and every conclusion which the evidence offered conduces to prove 1” This doctrine is indeed laid down in the single case of Gibson & Johnson v. Hunger,  but is not conformable to the practice of this country. In Knox v. Garland,  Hyers v. Green,  Hyers v. Wood, and Biggers v. Alderson,  the demurrers contained a statement of all the evidence on both sides, and concluded without any distinct admission by the defendants. The counsel observed, in the last mentioned case, “that by a demurrer to evidence the defendant not only admits the facts stated, but every rational inference which a Jury might deduce from them;” and this appears to be the correct doctrine, that such is the effect and construction of the demurrer, without any distinct admission. Whether the practice should be one way or the other, might appear a matter of no importance; but the inconvenience of establishing the rule contended for' goes to the total destruction of demurrers to evidence. How is it possible for the demurrant to fix on the inferences which might be drawn from the evidence? But this, in fact, is the province. of the Court, according to the case of Stephens v. White, 
    
    The effect of the demurrer then being that the defendant impliedly admits the truth of the plaintiff’s evidence, it only follows that he admits it such as it is; but here the plaintiff’s own evidence was contradictory, and therefore the Court could infer nothing from it in his favour.
    On the merits, he was not entitled to a judgment; for it is not at present proved that Holt was really insolvent, and Harrison ought not to hold the bond against him, and yet come upon Brock; neither is Brock responsible for any fraud committed by Stevens without his privity.
    I admit the plea of “arbitrament and award,” in so many words, was bad; but it gave the plaintiff notice that the defendant intended to rely upon an award, and was, therefore, sufficient to let it in upon the plea of non assumpsit, as where there are bad counts and good counts in the same declaration, evidence may be received 30 upon the good counts *of facts of which the defendant had notice by the bad counts, the great object being to prevent surprise, by giving notice of the cause of action, or ground of defence, as the case may be. 
    
    But, if the award was not admissible, the objection should have been taken by bill of exceptions. The evidence would certainly have been proper bj' consent of parties; and the plaintiff’s not excepting was equivalent to a consent on his part.
    Mr. Munford contends that, since the award was made aftor the action brought, it should have been specially pleaded. But the same objection was taken and overruled in Turberville v. Self,  The award does not make the pa3rment, but ascertains that there was a payment before the suit,  It may be considered as an indirect agreement of the parties to the facts stated therein.
    If the failure to make the rule of Court tvas a revocation, I wish the counsel had fixed the time when it was to be considered as such. But, in fact, the submission was never revoked; for both parties attended with their witnesses, and acquiesced in the authority of the arbitrators. Their award might and ought to have been made the judgment of the Court; the going on after-wards to trial by Jury was an error favourable to the plaintiff, and not a subject of complaint on his part.
    Taking the submission and award together, every reasonable degree of certaint3r is attained. The statute of jeofails applies to awards by analogy; but it is not necessary here, for no other controversy between the parties is stated, and no other debt appears but that for which the suit was depending; and, as to the supposed illegality, the case of Pleasants, Shore & Co. and Anderson v. Ross shews that an award is not to be impeached on the ground of a mistake in law or fact, upon affidavits to prove it, but onty where such mistake appears upon the face of the award.
    “'Munford, in reply,
    said, he did not mean to contend that an express admission of the truth of the plaintiff’s evidence was necessary in the demurrer. An implied admission would equally answer the purpose; but such admission cannot be implied where the defendant introduces evidence to contradict that of the plaintiff.
    In this case, what testimony was produced on each side does not distinctly appear in every part of the demurrer; but, at aerate, the award, and the witness in support of it, went to contradict the plaintiff’s evidence. On his part, the justice of his claim originally had been fully proved. Thomas Woodroof, (the only witness who said that he had taken Holt’s bond in satisfaction) had been completely discredited by William Shelton. The circumstances proved b3T other witnesses, particularly that after presenting the bond to Holt for payment, the plaintiff immediately returned to Stevens, and wished him-to take it back; that, some time afterwards, he applied to said Stevens, and said he must assign it to him; that Holt was believed by many to be insolvent at the time of the trade, and that Stevens himself believed him to be so, but told the plaintiff he expected he would get the money upon application; were amply sufficient to authorize the Jury to conclude, either that the plaintiff had not in fact received the bond as satisfaction, or that the trade was not binding upon him, being annulled and rendered void by the fraud; yet the award declared that the said bond was received in payment, and ought to go (without recourse) to the extinguishment of the said debt! This was certainly declaring that no fraud existed, and contradicting the whole current of testimony on the part of the plaintiff. The Jury, therefore, and not the Court, ought to have weighed the award compared with the other testimony, and determined which should, preponderate.
    The doctrine that the defendant may, in every case, by means of a demurrer, submit his evidence contradicting that of the-plaintiff, to the Court, instead of the Jury, ‘ ‘goes to the total destruction of the 32 trial by Jury,” and *would, in practice, be intolerably harassing and oppressive. It seems clear, therefore, that in this case the plaintiff should not have been compelled to join in demurrer.
    As to the merits, the question whether Holt was really insolvent or not, was proper for the consideration of the Jury; but that question, through the defendant’s fault, having been wrested from the Jury to the Court, the latter became competent to decide it against him. The judgment, therefore, should not be disturbed, especially as the testimony was sufficient to justify the decision. That Brock was not responsible for the fraud committed by Stevens, is admitted; but it is equally certain that he cannot claim an3r benefit from that fraud.
    Mr. Botts’s doctrine concerning the notice given by a bad plea, and that in consequence of such notice, evidence may be received upon the good plea, is truly original and extraordinary. I had alwa3rs understood the rule to be, that such evidence as goes to support the good plea, or count, is. admissible, but none at all in support of the bad.
    The plaintiff has excepted to the whole-demurrer to evidence, and of course to the admissibility of the award as part thereof. The defendant himself, by tendering the demurrer, had taken it away from the Jury; the plaintiff, therefore, excepted in the only way which was left to him. In the case of Turberville v. Self,  the award was not made after the action brought, but “after the distress was taken respecting: accounts subsisting between the parties prior to the distress.”
    If the award could have been made the judgment of the Court, why did not the defendant bring it into Court, and move to have it entered as such? But the truth is, it was so vague and uncertain in not expressing the debt to which it was intended to apply; so incomplete in not disposing of the suit between the parties, that a judgment could not have been rendered upon it, even if every other objection had been surmounted.
    *Friday, March 16.
    
      
      Demurrer to Evidence — Joinder—When Not Compelled. — See monographic note on “Demurrer to the Evidence” appended to Tuttv. Slaughter, 5 Gratt. 361.
      Same — What Evidence Inserted Therein. — In Green v. Judith. 5 Rand. 1, 19, Judge Co alter, in discussing the propriety of the practice as a general and universal one, of including in a demurrer to the evidence all evidence adduced on both sides, reviewed all the cases involving that point which had been hitherto decided. Among the others, the judge cites the principal case and after quoting therefrom, discusses the decisions therein at some length. In this case (Green v. Judith), it was held that the practice of inserting in a demurrer to the evidence, all the evidence on both sides, is established by repeated decisions in Virginia. In Adkins v. Fry, 38 W. Va. 557, 18 S. E. Rep. 740, it is said: “In the case of Childers v. Deane, 4 Rand. (Va.) 408, it was held that a demnrrer to evidence should contain all the evidence on both sides. See also, Hoyle v. Young, 1 Wash. (Va.) 152; Green v. Judith, 5 Rand. (Va.) 1; Harrison v. Brock, 1 Munf. 35, and immerons other cases, where it is held that the whole evidence must be set out; that is, not only that offered by the plaintiff hut that offered by the defendant.” For further information on this subject, see mono-graphic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364. The principal case is also cited in Harman v. Cundiff, 83 Va. 249.
    
    
      
      (Evidence — Award Pendente Lite. — To the point that an award made after the institution of a suit cannot be given in evidence on the plea oí nonassumpsit. the principal case was cited in Austin v. Jones, Gilm. 353. This rale grows out of the general principle of law that the evidence, the pleading and the verdict, all have reference to the time of instituting the suit. Austin v. Jones, Gilm. 353,
      See generally, monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684; monographic note on “Ms Pendens” appended to Stout v. Vause, 1 Rob. 169; mono-graphic note on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276.
    
    
      
      Appellate Practice — Reversal oi Judgment — Admission of Improper Evidence. — See monographic note on “Appeal and Error” appended to Hill v. Salem, etc.. Turnpike Co., 1 Rob. 263; monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       5 Rep. 104, Baker’s case; 3 T. Bl. 372. n. 26. 1 Doug. 119, Cocksedge v. Fanshaw; 2 Tidd’s Pr. 793. citing 2 H. Black. 187, Gibson & Johnson v. Hunter.
    
    
      
       Peake's Ev. 249.
    
    
      
       2 Wash. 210, Stephens v. White.
    
    
      
       Kirtley v. Deck, 3 Hen. & Munf. 388.
    
    
      
       Ibid.
    
    
      
       Peake, 248; Tidd’s Pr. 592.
    
    
      
       1 Rev. Code. c. 52, p. 49, 50; 2 Lord Raym. 789.
    
    
      
       Tidd’s Pr. 748. 749, citing 8 Co. 82.
    
    
      
       Ibid, citing 8 Term Rep. 139, Thompson v. Charnock.
    
    
      
       Ibid. 749, 756.
    
    
      
       2 Term Rep. 643, Owen v. Hurd; 8 Rep. 87, Jenkins v. Law.
    
    
      
       2 H. Black. 187.
    
    
      
       2 Call, 241.
    
    
      
       Ibid. 555.
    
    
      
       Ibid. 574.
    
    
      
       1 Hen. & Munf. 54.
    
    
      
      g) 2 Wash. 210.
    
    
      
       2 Wash. 180, Overton & Wife v. Hudson.
    
    
      
       2 Wash. 71.
    
    
      
       Ibid. 72.
    
    
      
       1 Wash. 158.
    
    
      
       2 Wash. 71.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

Upon the original merits of this case, as disclosed by the fact stated, and admitted by the defendant in his demurrer to evidence, I cannot entertain a doubt. It appears to have been a case of fraud and imposition on the part of the defendant’s agent, upon a poor, and probably ignorant, waterman, to shuffle him out of his well earned wages, by palming upon him the bond of a man whom, at the time, he believed, and probably knew, to be insolvent; and, when applied to by the plaintiff, who had endeavoured to obtain payment of the bond, to take it back, he not only refused to do so, but even went so far as positively to refuse to assign the bond to the plaintiff to enable him to bring suit upon it in his own name. These facts, and others of the same complexion, are admitted by the defendant to be true; he then exhibits a submission to arbitration, by the same agent in his behalf and by the plaintiff, after the suit was brought, (in which it was mutually agreed that that submission should be made a rule of the County Court of Amherst,) and an award made two days after, by which two or the arbitrators awarded, “that the said bond was received by the plaintiff in payment, and ought to go without recourse to the extinguishment of the debt.” Why this submission was not made a rule of Amherst Court, pursuant to the terms thereof, does not appear. The plaintiff refused to join in the demurrer to evidence until overruled by the Court. The Jury assigned damages conditionally, and the County Court gave judgment in favour of the plaintiff; but that judgment was reversed by the District Court, because the County Court refused to consider the award made between the parties as final and conclusive.

It was admitted by the appellee’s counsel, that the words “arbitrament and award,” pleaded by the defendant in so many words, were a mere nullity, and must be dis-34 regarded; *and that the cause is to be considered as having been tried on the plea of non assumpsit only. It is an invariable rule that every defence which cannot be specially pleaded, may be given in evidence, upon the general issue, upon the trial; but a submission to arbitration and an award might be so pleaded: of this the defendant was apprized, and probably considered the evidence offered as strictly within the issue joined. He is expressly stated to have had no personal agency, and no knowledge of the transactions of his agent, as above stated. Here, then, are two innocent persons embroiled in a lawsuit by the misconduct of the agent of one of them. A Court of Equity, with all necessary parties before it, would probably find no difficulty in adjusting matters properly. But we are now in a Court of Daw, and must endeavour to do justice, as far as the nature of the case will permit, between the parties.

According to the rules of Courts of Daw, the only issue which the Jury were sworn to try, was upon the plea of non assumpsit; upon that issue evidence of a submission to arbitration, and an award made, was not admissible, because that matter might have been specially pleaded, and ought more especially to have been so pleaded, because both the submission and award were made after suit brought; whereas the plea of non assumpsit refers to the original ground and cause of action. If the Jury had rendered a verdict for the defendant upon this evidence, and it had appeared upon the record that they did so, it would have been error, Would a judgment by the Court, upon a demurrer to evidence, have been more legal or conclusive in favour of the party offering improper evidence, than the verdict of a Jury? I conceive not; for the Court, in this instance, are merely substituted for the Jury, as triors of the facts relevant to the issue joined; and if it shall appear that they may have been influenced by improper testimony, their judgment, (like the verdict of the Jury,) if in favour of the party offering the evidence, ought to be set aside; otherwise, if it be against that evidence; for, then, it is clear 35 *the evidence has not had any undue influence. The judgment of the County Court was not influenced by this improper evidence; it was, therefore, I think, correct; and, consequently, the judgment of the District Court reversing that judgment ought itself to be reversed, and that of the County Court affirmed.

JUDGE ROANE.

In this case, (as it appears upon the demurrer to evidence,) the plaintiff having established his debt, evidence was given, on the part of the defendant, of a conversation and transaction which is relied on, in bar, as an accord and satisfaction. This was proved by one witness only, who said he was present at the time of the transaction aforesaid, and heard the whole of the conversation, in which, it was further proved by him, the appellant agreed to take Holt’s note in payment. This testimony was met by testimony on the part of the appellant, stating an after acknowledgment on the part of the said witness, (Woodroof,) that he was not present during the whole time of the transaction aforesaid; which testimony is in conflict with the former, and goes directly to impeach the credibility of this witness, adduced on the part of the appellee. The appellee demuired to the evidence, (the whole evidence on both sides being stated,) and the appellant was ruled to join in the demurrer, although he objected thereto. It is true, the demurrer does not state explicitly what evidence was given oh the part of the appellant and appellee respectively'; but I infer it, as aforesaid, from the nature and effect of the testimony.

In a demurrer to evidence it has been decided, that the whole evidence must be stated, and thereupon the judgment of the Court is to be pronounced: the question, therefore, becomes important, whether, in the case before us, the Court rightly ruled the appellant to join in demurrer. It is admitted that a discretion in this respect exists with the Court, ait least in cases depending on loose or contradictory 36 testimony; and it remains to be inquired, whether that discretion was rightly exercised in the present instance. The appellee’s testimony is (as aforesaid) contradictory to, and in conflict with, that of the appellant. It is true, it is not opposed to the testimony originally adduced by him, but to that which came out in the replication, if I may be permitted so to express myself; but, on principle, that can ■make no difference, as all the testimony was given anterior to the exhibition of the demurrer. If the right of the appellee in this case to compel his adversary to join in demurrer be absolute, what is it but to give credit to his own witness, or, at least, to carry his credibility to be adjudged of by an improper tribunal? as the Jury, and not the Court, are the proper and exclusive Judges of credibility. Under that idea, a defendant (and, e converso, a plaintiff) might ensure success in all cases by bringing a profligate witness to oppose the plaintiff’s demand, and then instantly conferring credit on him by demurring to the plaintiff’s testimony, and compelling him to join in demurrer; and, in general cases, the plaintiff might not be so fortunate as the present plaintiff, in having confronting testimonj' to exhibit. This would be intolerable in its consequences; and this consideration would undoubtedly afford a good reason with the Court for refusing to compel the plaintiff to join in demurrer.

In 5 Bac. 467, (Gwill. ed.) it is said, that “if it be alleged by one party that there is such a writ, and denied by the other, and thereupon there is a demurrer to evidence, no judgment can be given,” (and therefore I infer the adverse partj' should not be compelled to join,) “for the being or not being such a writ, is a fact which a jury should determine; but in such case the writ should be admitted tiel quel, and then its effect should be adjudged by the Court.” This case seems analogous to the one before us. With respect to the difficulty, stated by Mr. Botts, as to the impossibility of the demur-rant’s knowing what inferences do exist, and are therefore to be admitted, I should 37 be satisfied *if, while he waives a reliance in the credibility of his witnesses, when opposed to the testimony of the party demurred to, (which he may do in general terms,) the drawing of the proper inferences be left to the Court. It is only substance that I am in quest of, and that is entirely attained, if my construction, while it does not confer on the Court the province of judging of credibility, does not take from it the power of inferring the facts admitted to be true.

As the County Court, therefore, compelled the appellant to join in demurrer in this case, without an explicit admission, on the part of the appellee, of the truth of his (the appellant’s) testimony, so far as it conflicted with his own ; or, which is the same thing, without a waiver of his own conflicting testimony, I am of opinion that their judgment was erroneous. As, however, the first opinion of the County Court, compelling the plaintiff to join in demurrer, was favourable to the appellee, though erroneous, and as their final judgment on the demurrer would have been a fortiori for the appellant, if the appellee’s conflicting testimony had been excluded, and would, in that case, have been altogether correct, I see no reason for disturbing that judgment. It is, however, the reversing judgment of the District Court which the appellant complains of. That judgment is erroneous in considering the award stated in the demurrer as final and conclusive. That award was not proper evidence on the plea of nonassumpsit. My opinion, therefore, is to reverse the judgment of the District Court, and permit that of the County Court, in favour of the appellant, (although erroneous as aforesaid,) to stand, for the reasons just mentioned, especially as the justice of the case is entirely in favour of the appellant, and he has already been compelled to encounter so much litigation.

JUDGE FLEMING.

It appears to me that the County Court of Amherst erred in compelling the plaintiff to join in the demurrer to evidence, and also in permitting the award, made pendente lite, to go in 38 evidence to the jury *on the issue joined on the plea of non assumpsit; but, the judgment in that Court being in favour of the appellant here, he has no cause- of complaint on that account; and, as it appears from the evidence that a most palpable fraud was practised on him by Stevens, the storekeeper and agent of the appellee, the merits of the cause are clearly in his favour. I therefore concur in the opinion that the judgment of the District Court be reversed, and that of the County Court affirmed, which is the unanimous opinion of the Court. 
      
       2 Wash. 281, Lee v. Tapscott.
     