delivered the opinion of this Court.
After the opinion of the Court had boon delivered in this case at the present term, the counsel for the appellant filed agreements, by which the motion to strike out the entry of use in favor of Thomas S. Alexander and *256George W. Dobbin, was withdrawn, by their consent; reserving however to the plaintiff or the representatives of Lady Stafford, the right to renew the motion, and to resist the right or claim of the cestuis que use, by any form of proceeding which would have been admissible, if such motion had never been made, or being made, had not been withdrawn. And thereupon the appellants’ counsel have moved this Court to modify the judgment already entered, or proposed to he entered, and order final judgment to be entered up in this Court in favor of the plaintiff (the appellant) for the land claimed in the declaration. The learned counsel who have appeared in support of this motion, have not misconstrued the opinion of this Court first pronounced in the cause. In the view which was then taken hy the Court, of the questions presented by the bill of exceptions, and the construction of the Act of 1826, to grant this motion would he simply a matter of course, so soon as the obstacle growing out of the motion to strike out the use should be removed. This conclusion, however, the Court have, had occasion to reconsider, and entertaining some doubts of its correctness, the clerk was directed to furnish to the defendant’s counsel a copy of the motion, and after reading his argument, suggested their doubts to the counsel of the plaintiff, and requested them to argue the question. We have now before us the able arguments submitted on both sides, and shall proceed as briefly as we can, to dispose of the interesting question of practice now presented. By the Act of 1826, ch. 200, sec. 10, this Courtis authorized on any appeal or writ of error, “to give judgment, or award a writ of procedendo for a rehearing of the case, as shall appear to he just.” Construing this provision by the aid of previous legislation, and the practice of the Appellate Court, we cannot better convey its meaning than by referring to the words of the Code, Art. 5, sections 14 and 16, in which the statute law of the State, regulating this *257subject, as it existed before tlie Code was adopted, is briefly and clearly expressed. On reversing a judgment, this Court has power “to give such judgment as ought to have been given by the Oourt below. ’ ’ And ‘ ‘in all cases where judgments shall be reversed or affirmed by this Court, and it shall appear to the Court that a new trial ought to be had, a writ of procedendo shall issue.” Ought the Court below to have rendered judgment in this case for the plaintiff? If not, then this motion cannot be granted. Independently of our statute, this is the general rule governing Courts of error and appeal, stated in Tidd’s Practice, cited in argument.
When may the Court pronounce final judgment? To answer this question it is necessary to state some general propositions. 1st. When the issue joined is to be determined by the Court, as on a plea of nul tiel record, or on demurrer; if the Court below err, this Court on reversing the judgment, may give final judgment according to law. Of this class were the cases of Wilson vs. Stonestreet, The State vs. Raney, and some others cited, and the case of McCormick vs. Bradfield, which was a suit upon a record, decided at the present term. 2nd. When the facts are concluded, leaving only questions of law to be determined by the Court, as upon a special verdict, or upon an agreed statement of facts or case stated and submitted to the Court for its judgment thereon. Of this latter class were The Farmers Bank vs. Sprigg, 11 Md. Rep.; Simpers vs. Simpers, 15 Md. Rep., and Phelps vs. Phelps, 17 Md. Rep. And to this class it is contended the present case is analogous, and ought to be decided upon the same principle. This makes it necessary for us to examine again the bill of exceptions. From that it appears that the plaintiff, to maintain the issue on his part joined, offered in evidence to the jury, certain written agreements or admissions of counsel, and closed his case. The defendant then asked the Court for an *258instruction to tbe jury, based upon a supposed failure “of proof on the part of the plaintiff, and the instruction being granted, the verdict was in his favor, and judgment granted thereon. No evidence was offered by the defendant after this prayer was granted, which was fatal to the plaintiff’s case; no evidence on the part of the defendant was necessary. We have decided that the Circuit Court erred in giving the instruction to the jury, and have reversed the judgment. Can we give final judgment for the plaintiff? To do so would be to decide that if the Circuit Court had not erred in the law, and had refused to give the instruction asked, it might have rendered such a judgment, and denied to the defendant the privilege of offering evidence in defence. It is apparent from the bill of exceptions that there was no question of fact for the jury to determine. There was no evidence offered by the plaintiff of a notice to quit, and the instruction to the jury, that without such notice the plaintiff could not recover,” was equivalent to a direction to find for the defendant on the plaintiff’s proof. We have no evidence in the hill of exceptions of any rule in' the Circuit Court requiring all the testimony on both sides to be offered before any prayer is made to the Court. In the absence of any such rule this Court cannot assume, that the defendant did not intend to offer any proof, in the event of his want of success in his prayer to the Court. It is a perfectly legitimate and usual practice to offer a prayer involving the right of the plaintiff to recover on the case made hy him, before any proof is offered by the defendant. Even in the Courts of Baltimore City, where there has long existed a rule such as that we have spoken of, it is expressly provided that “the Court will, in its discretion, permit the defendant to submit a prayer or prayers involving the right of the plaintiff to recover, and the extent of such right.” And if in such case the Court helow erroneously grant the defendant’s prayer, *259and tbe judgment is reversed on appeal, it would often be doing tbe greatest injustice, if tbe Court should enter final judgment, thereby depriving the defendant of the privilege of offering any evidence; and that too, not by reason of any fault of his, but from an error committed by the Court. No precedent has been cited to authorize us to enter a final judgment in this case, and the motion therefore will be overruled, and a procedendo ordered, directing a new trial, The opinion of this Court, heretofore pronounced, except so far as it is modified by this, remains unaltered.
(Decided November 16th 1864.)Motion overruled, and procedendo ordered.