
    Thweat and Hinton v. Adam Finch.
    October Term, 1793.
    Pleading and Practice — Nonsuit—Court Cannot Compel. — Upon a motion for a nonsuit, tbe Court may give tbeir opinion that the plaintiff has no cause of action, and may direct him to be called: but the Plaintiff may refuse to suffer a nonsuit; or the Court may refuse to give any opinion, and so leave the whole to the Jury.
    Demurrer to Evidence — When Court May Refuse to Compel Joinder.! — If one of the parties offer a demurrer to the evidence, the Court, if the evidence he clearly against him, may refuse to compel the other party to join.
    Pleading and Practice — Declaration—Multifariousness —Case at Bar. — Case, against two inspectors of tobacco at Robert Bolling’s warehouse, for that they, having inspected a hogshead of tobacco, the property of the plaintiff, refused to deliver the notes, or tobacco, to the plaintiff, as hy law, and the duty of their office, they were bound to do, but had delivered the notes and the tobacco, to another, having no authority to receive them, contrary to law, and the duty of their office. Objections to the declaration for being multifarious, and for not stating the warehouse to be a public one, overruled.
    Finch brought an action upon the case, in the District Court of Petersburg, against Thweat and Hinton as inspectors at Robert Bolling’s warehouse. The declaration states, that the defendants, having inspected and passed three hogsheads of tobacco, the property of the plaintiff, they refused to deliver him the usual notes, or receipts for them, as by law, and the duty of their office, they were bound to do; but had delivered the notes, and the tobacco to other persons, having no authorit}' from the plaintiff, to receive the same, contrary to law, and the duties of their office. Plea, not guilty. Verdict and judgment for the plaintiff, from which the defendants appealed.
    The defendants filed a bill of exceptions, at the trial, stating, that the plaintiff gave in evidence that John Finch, by direction of the plaintiff, applied to the defendants in the year 1784 for the tobacco in question. That the defendants shewed him the warehouse books, by which it appeared, that the defendants had received, and inspected the three hogsheads of tobacco *in the declaration mentioned, as the property of the plaintiff, and that the same had been shipped; the defendants alledging, that they had issued notes for it, in obedience to a written order to do so in the name of the plaintiff, which they shewed to John Finch, who is certain, it was not the hand writing of the plaintiff, of which he informed the defendants.
    That the plaintiff, afterwards gave a written order, directing the inspectors to deliver the notes for the tobacco, to the said John Finch, who presented the same, and demanded the notes, but the defendants refused to deliver the notes, or tobacco, for the reasons before given ; but that no proof was made of a personal demand, by the plaintiff himself. The defendants alledging, that the evidence was not sufficient to maintain the issue on the part of the plaintiff, moved for a nonsuit, which was over-ruled.
    Call, for the appellants.
    The first objection which is to be made to this judgment, respects the imperfections of the declaration. Though it states that the defendants were inspectors at Bolling’s warehouse, it does not charge them to be public inspectors of a warehouse established by law, and unless this were the case, this action could not be sustained. Robert Bolling, might have owned a private warehouse, and the appellants might have been inspectors at it, for any thing that this court can judicially know. The contrary is not to be presumed. —The appellants, could not with propriety, traverse this material fact, as it was not charged in the declaration.
    The declaration is also liable to objection, on account of its being double, and thereby forbidding an issue upon a single point, or at least tending to produce confusion in the trial, and to conceal from the defendants view the point intended to be controverted. It charges, 1st, A refusal to deliver the notes to the plaintiff; and 2dly, a delivery of them to a third person, unauthorized to receive them. If the plaintiff may bring two distinct charges into discussion, in one court, he may multiply them without end.
    As to the bill of exceptions, I think it shews that the appellee ought not to have recovered upon the evidence produced by him. It appears, that no demand was made by the appellee himself, and the act of Assembly does not authorise inspectors to deliver the notes to the order of the owner, but to the owner himself. If the appellants were chargeable in this case, it would place inspectors in this dangerous dilemma: if they deliver the tobacco to the forged order of a person, whose hand writing *they never saw, they subject themselves to an action, and to a penalty also: if they, do not deliver it, and the order should be genuine, they will still be liable to an action. The law, au-thorises the delivery of the notes, to the person who brings the tobacco and from any thing appearing in this record, the notes, might have been delivered to the overseer of the appellee.
    Marshall for the appellee.
    What weight there might be in the objections to the declaration, if they had been made at a proper time it is unnecessary now to decide, because, after a general verdict, the court will presume, that those things were proved to the jury, without which, they ought not to have found as they have done. The court, after verdict, will not, for the purpose of destroying it, hunt after objections, or enquire, whether there might not be a possible case, in which this action would not lie. It is notorious, that there are no private warehouses for the inspection of tobacco, in this country. The declaration, pursues the words of the law. The act of Assembly, which establishes tobacco warehouses, is a public one, and the court will therefore take notice, that Bolling’s warehouse is one, created by this law. But there may be enough collected from the declaration, to defeat this objection; for it charges, that the defendants refused to deliver the usual notes, contrary to their office of inspector. Another objection to the declaration is, that it is double. But if there be two acts, either of which will sustain an action, it cannot be error to state them both, by way of aggravating the damages.
    The point made in the bill of exceptions, having been before decided in this court, it will be unnecessary to take notice of it. It is settled, that the court cannot direct a nonsuit in any case, and that if they do, the plaintiff may refuse to submit to it.
    Cali in reply.
    As to the power of the court, to direct a nonsuit, I admit, that the point has been settled as Mr. Marshall has stated. But certainly, if a bill of exceptions exhibits the whole evidence, and shews, that the plaintiff had no cause of action, judgment may be rendered against him, as well in such a case, as if it had appeared, in the form of a demurrer to evidence.
    
      
      Pleading and Practice — Nonsuit.—In Gunn v. Ohio River R. Co., 36 W. Va. 176, Id S. E. Rep. 468, itis said: “Upon a motion for a nonsuit,.the court may give their opinion that the plaintiff has no cause of action, and may direct him to be called, but he may nevertheless appear and refuse to be nonsuited. Tlvweat v. Finch, 1 Wash. (Va.) 317. So, on the other hand, the court may, upon motion, declare that the action is maintainable, or may refuse to give any opinion, and so leave the whole question with the jury, (Id.;) and this latter is the proper course, unless some essential element of the right of recovery is wholly wanting, or the evidence, as a whole, is so destitute of proof of what is essential, that there is no room for two honest, intelligent opinions about it, or the question, on indisputable-facts, is purely a question of law.”
      And in Brooke v. Young, 3 Rand. 114, the principal' case is cited to the point that if the court admit improper evidence, an exception may be taken; but if the question depend on the weight of testimony. the jury, and not the court, are exclusively and uncontrollably the judges.
    
    
      
      Demurrer to Evidence — Joinder.—m the first headnote of Dunbar v. Beale, 5 Munf. 2d, it is said: If the case be clear against the party tendering a demurrer to evidence', the court may refuse to compel the other party to join. See Thweat <ti Hint,on v. Fineh, IWash, 220. The principal case is cited on the question of joinder in a demurrer to the evidence in G-reen v. Buckner, 6 Leigh 83; Toot-note to Trout v. Va. & Tenn. R. Co., 23 Gratt. 619, See monographic note on “Demurrer to the Evidence’’ appended to Tutt v. Slaughter, 5 Gratt. 36Í.
    
   The PRESIDENT

delivered the opinion of the court.

Upon a motion for a nonsuit, the .court ma}' give their opinion, that the plaintiff has no cause of action, and may direct him to be called. But he may nevertheless appear, and refuse to be nonsuited, nor can the court compel him against his will.

*So on the other hand, the court may declare, that the action is maintainable — or may refuse to give any opinion to the jury, and so leave the whole question with them: if they do instruct, still the jurj' may find against the opinion of the court, who have no remedy left, but to grant a new trial.

So, if the party file a demurrer to the evidence, the court may, if the evidence be clear, refuse to compel the other party to join in demurrer, leaving the jury at liberty to determine.

But if in either of these cases, if the Superior Court should be satisfied, that the plaintiff had no cause of action, they will reverse the judgment.

This bill of exceptions, exhibits a very different case — the whole question was, whether the order, on which the notes and tobacco were delivered, was genuine, or counterfeit. This was a mere matter of fact, proper only for the enquiry, and determination of the jury. As to the hardship, which it was contended inspectors would be subjected to, it is no greater than that to which they might be exposed, by delivering tobacco on counterfeit notes, in which case, they would clearly be liable, to the holder of the real notes. It is a common and known risk of office, contemplated when undertaken.

We are next to consider the objections to the declaration.

The first is, ' that the warehouse is not stated to be a public one. If it were possible to suppose a private warehouse, at Robert Bollings —Inspectors there, to view, and pass tobacco — compelled by law, and the duty of their office, to give notes obligatory upon them, to deliver the tobacco on demand — that the inspectors had refused such notes, by which the plaintiff had lost, his tobacco: if, I say, we could suppose all this, and consider this as a mere private contract, it would even then be difficult, to suppose the objections to the action, upon principles of common law.

But such a case is altogether visionary. The record, and the public laws upon the subject, warrant the court in saying, that the warehouse, and the inspectors, are such as the law has established.

The second objection is, that the declaration is multifarious.

. The act of Assembly requires, 1st, that the notes should be delivered to the owner of the tobacco, but inflicts no penalty for refusing to do it. 2dly, It imposes a penalty upon the’ inspectors, for delivering the notes to any, but to the proprietor of the tobacco, without a written order from him.

*This action is brought, not for delivering the notes to a third person, unauthorized to receive them, but for not delivering them, when demanded, to the owner. — The former offence, tho’ charged, is merely by way of special damage, and intended to shew the remedy complete for the whole value of the tobacco, since the defendants had put it out of their power, ever to deliver it.’

Judgment affirmed.  