Eubank's Ex'or v. Smith

Lewis, P., delivered the opinion of the court. This was an action of debt, brought in the circuit court of King William county in 1815, by the defendant in error against the plaintiff in error, surviving executor of the will of Thomas Gr. Eubank, deceased. The object of the suit was to recover judgment on a bond for $1,510, executed jointly by the defendant’s testator in his lifetime, and Richard Eubank, payable one day after date, and dated February 16, 1854. The defendant pleaded payment, and also accord and satisfaction. At the trial, the plaintiff demurred to the evidence, in [212] which, demurrer the court compelled the defendant to join; and the jury being thereupon discharged, the .court pronounced judgment on the demurrer for the plaintiff. The action of the court in compelling the defendant to join in the plaintiff’s demurrer is assigned as error, and involves the only question presented, which we deem it necessary to consider. By the established practice in Virginia, either party may demur to the evidence, and it is within the power of the court to compel a joinder in the demurrer. But it is a power to he exercised with discretion, and when exercised, the action of the court is subject to review in an appellate court. Where the case is plainly against the demurrant, or where there is doubt as to the facts proved by, or the proper inferences to he drawn from the evidence, the court should always refuse to compel a joinder in the demurrer. For to do so, would he to usurp the province of the jury, which, in such cases, is the most fit tribunal to decide. Notwithstanding, therefore, the demurrant by his demurrer is considered as admitting the truth of all his adversary’s evidence, and all just inferences which can properly be drawn therefrom by a jury, and as waiving all his own evidence which conflicts with that of his adversary, and all inferences from his own evidence (although not in conflict with his adversary’s) which do not necessarily result therefrom; yet, if upon the evidence thus presented for the consideration of the court, it is still a matter of doubt or uncertainty as to what facts are established, or what inferences are fairly deducible from the evidence, it is the duty of the court to refuse to compel a joinder in the demurrer, and to submit the case to the jury. It is unnecessary to review the evidence copied into the demurrer in this case. It is sufficient to say, that after examining it carefully, we are satisfied that there was sufficient doubt as to the facts established and the proper inferences to be drawn, to make it improper to withdraw the case from the consideration of the jury, and that in doing so, the court plainly usurped the province of the jury. [213] The judgment of the court below must, therefore, be reversed, and the case remanded for a new trial. The judgment was as follows: This day came again the parties, by their counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in requiring the defendant in the court below (the plaintiff in error here) to join in the plaintiff’s demurrer to the evidence. It is, therefore, considered by the court that for the error aforesaid the said judgment of the said circuit court be reversed and annulled, and that the plaintiff in error recover against the defendant in error his costs by him expended in the prosecution of his said writ of error and supersedeas here. And this cause is remanded to the said circuit court for a new trial to be had therein. Which is ordered to be certified to said circuit court of the county of King William. Judgment reversed. .