dissented, and delivered the' following opinion:
I cannot assent to the judgment of the Court in awarding a venire facias de novo. t
I give my unqualified concurrence to that portion of the opinion delivered by the Chief Justice which maintains that the evidence in the Court below was insufficient to warrant a judgment for the plaintiff; and I frankly confess I know of no principle of law which would authorize a Court or jury to refer to the bill of particulars in a plaintiff’s declaration to supply any defect or omission in the evidence.
If it can be referred to as proof, or to aid the proof, for one purpose, it can be for all purposes.
If it is evidence to establish any one item, it is evidence to establish the whole cause of action; and as a consequence, the extent of a plaintiff’s recovery, instead of depending upon the well defined rules of evidence, would be determined by every plaintiff in framing his bill of particulars. The sole object of a bill of particulars is to apprise the opposite party of the cause of action, its character and extent; not that it contains intrinsic evidence of its correctness, or raises the slightest presumption of indebtedness.
But I am compelled to dissent from the opinion so far as it determines that the Court below commtited error in sustaining the demurrer. If, as is conceded, the Court be*394iow could not, under the evidence, overrule the demurrer and give judgment for the plaintiff, it was bound to sustain the demurrer and give judgment for the defendant. I do not say that this would follow in every case, but under the facts in this, it does result as a necessary consequence. The opinion of the Court, as I understand it, is based on the hypothesis that the evidence in this case was of such a character that no judgment could be given for either party upon demurrer.
If this be true, the judgment pronounced by this Court is sustained b'y authority, and cannot be questioned.
There can be but little diversity of opinion as to the effect of a demurrer to evidence. It is well settled that a party who demurs, withdrawing thereby the consideration of the facts from the jury, is bound to admit not only the truth of the evidence, but every fact which that evidence legally conduces to prove in favor of the other party; and if, upon the facts, a jury, by a fair construction of the evidence, would have been authorized to have given a verdict against the party demurring, the Court would also be at liberty to give judgment against him. 3 Peters’ Rep., 36, 96, 2 Blackstone Rep., 209. In other words, the Judge being substituted in the place of the jury, in the consideration of the facts, is bound to give the same weight aud construction to the evidence which the jury could do, under his construction of the law, arising from the facts. The whole proceeding upon a demurrer to evidence being under the control of the Court, it will not, I admit, rule a party to join in a demurrer, where the evidence is purely circumstantial, or of such a loose and undefined character that a doubt is entertained as to its effect, unless the party demurring admit, if need be, on the record, every fact which could be reasonably inferred from it, or which, in the words of the authorities, it conduces to establish.
*395The application of these well settled principles to the evidence in this case, will determine the question before us. The facts proven are substantially these : That the account sued on is a correct transcript from the books of Eowles & Iliggs, and that witness knows that a part of the articles enumerated were purchased by the defendant, and delivered. Is this evidence so uncertain and undefined that there is a doubt as to its meaning ? And was not the Court below as fully competent to determine its import and effect as a jury ? If the evidence was circumstantial, operating beyond proof of the fact of sale and delivery, or if it was susceptible of more than one construction, and a reasonable doubt existed as to which construction should prevail, then I concede it was the province of a jury to draw the inference and determine the question. Eut what does this evidence legally conduce to prove % Certainly not the value of any one of the items charged, or any other fact available to the plaintiff’.
Instead of demurring to the evidence, had the issue been submitted toa jury, what would have been the result ? The Court would have been bound to have instructed the jury to have found for the defendant, and for the reason that there was no evidence to sustain the issue ; for, so far from the transcript of the books, though attested by the clerk or book-keeper, being evidence, the books themselves would have been no evidence; and that in the utter absence of all proof of the value of auy article, it was not the province of the jury, from the isolated fact of the delivery of some of the items, to infer a delivery of all, and arbitrarily affix any value, or assess any damages; for, unlike a judgment by default, the plea in this case deifying all cause of action, the plaintiff was not entitled to even nominal damages.
It cannot be said that the evidence ill this case was cir*396cumstantial, from which, the jury could have inferred any fact sufficient to sustain the cause of action, or any part of it. The evidence did hot warrant any inference or deduction beyond the fact proved.
The case of Gibson vs. Hunter, 2 Blackstone Rep., 187, is relied on by the Court as authority in this case. But, •with due deference, I do not think the authority applicable. It is unnecessary to refer particularly to the facts in that case, as reported ; it is sufficient to say that the evidence was purely circumstantial. And in answer to the question propounded, by the House of Lords, whether upon that evidence any judgment could be rendered by the Court upon demurrer, Chief Justice Eyre said, “That “ the examination of the witnesses in the case had been con- “ ducted so loosely, or the demurrer had been framed so “ negligently, that there was no maovner of certainty in <>l the state of facts, upon which any judgment could be “ founded,” and a venire de novo was awarded upon the ground that, by reason of the party demurring, not admitting upon the record the facts which this circumstantial evidence conduced to prove, the issue between the parties had not in fact been tried. But it is further said in this authority, that the same rule of law requiring a party to join in demurrer, where the evidence offered is 'Written, applies to parol evidence, when it is certain, and admits of no' varianee.
Wherein consists the analogy between the authority and the case before us ? Is the evidence here “ loose, inde- “ terminate and circumstantial ?” Or is it not well defined, admitting of no variation or inference ? In one s&nse, the evidence in this case is uncertain, and so may be said of all evidence, however definite, which fails in establishing the point in issue.- And so all relevaoit evi.dence offered by a plaintiff conduces to prove the issue. *397But tliis is not the sense in which the term is used in the authorities ; otherwise, no oue could demur to evidence unless he admitted the facts put in issue, which admission would be a sufficient answer to and overrule the demurrer.
If, as is contended, the plaintiff in the Court below was not compelled to join in demurrer, under the proofs, I ask what fact was the defendant bound to admit under his demurrer beyond the sale and delivery of the articles ? If their value as charged, it would in effect have been a confession of judgment for the entire demand; and the effect of a demurrer to evidence would, therefore, be to defeat its "very object and purpose.
One of two propositions we are bound to admit; — either that the evidence in this case conduces to prove no fact beyond a sale and delivery of the goods, in which event the judgment of the Court below was correct, or that the evidence conduces to prove the entire demand of the plaintiff, which no one, I apprehend, would be willing to concede..
Giving to this evidence the utmost latitude, I do not find that the facts as proven, unaided by other testimony, establish anything material to the issue, and that, as it admits of no inference or interpretation in favor of the plaintiff, I do not see the necessity of calling for the investigation of a jury, which must result in a verdict no wise different from the judgment of the Court.