No. 3239. Book 4, tit. 8, chap. 11, sec. 3, § 5. No. 3240. of the jury, to be decided as a question of law, by the court. The demurrer to evidence is essentially a demurrer to the facts shown in evidence, the consideration of which, by this proceeding, is taken from the jury, and the whole matter in controversy is a question of law to be passed upon by the court. (a) The principal rules regulating demurrers to evidence, are the following: FIRST RULE. 3239. The party(b) demurring to evidence is required not only to confess the existence of the evidence offered, but admit the fact intended to be proved by it; a confession of the truth of the evidence, is not in all cases necessarily a confession of the fact intended to be proved by it. As a demurrer to evidence is intended to raise a question of law on the facts of the case, the facts must be admitted before such a question can arise. The demurrer, when properly tendered, admits the facts shown by the evidence, but denies their sufficiency in law, to maintain the issue in favor of the adverse party. (c) Before the party demurring can require the opposite party to join in demurrer, he is required to make certain admissions, which will be considered in the discussion of these rules. SECOND RULE. 3240. The relevancy of the evidence to the issue, is the only question which is raised by a demurrer to evidence, that is the sole question of law; whether (a) Co. Litt. 72; Bac. Ab. Pleas, N 7. But see Fowle v. Common Council, 11 Wheat. 320. For a form of demurrer to evidence, see 4 Chit. Gen. Pr. 16. (b) The demurrer to evidence can be taken only by the party who takes the burden of the proof, or affirmative of the issue, upon him. A party holding the negative of the issue, cannot demur to evidence, after introducing repellant testimony, and compel his adversary to join in the demurrer Hart v. Colloway, 2 Bibb. 460. (c) Coke Litt. 72. No. 3241. Book 4, tit. 8, chap. 11, sec. 3, § 5. No. 3243. what is given in evidence is, or is not sufficient to prove the point, is a question of fact, which must be admitted. Evidence is always relevant to the issue, which, in any degree, it conduces to prove; but then it must be relevant to the whole issue, for if it be so to part only, it is clear it could not warrant a finding of the issue, by the jury, in favor of the party exhibiting the evidence. The party demurring must be cautious, therefore, that the evidence if relevant at all, be not so to the whole issue.(a) THIRD RULE. 3241. The demurrer must be to the whole of the evidence; because the whole of it may be sufficient to maintain the issue when a part would not; and therefore the defendant cannot demur to the plaintiff's evidence until he has gone through the whole.(b) FOURTH RULE. 3242. A demurrer may be had to any kind of evidence, whether it is written or parol, direct or circumstantial. The manner of framing the demurrer, and of making the necessary admissions upon the record, is regulated by the nature of the evidence to which the demurrer applies. (c) 3243.-1. When all the evidence in support of the affirmative of the issue is written, there can be no doubt it may be demurred to; as where, on the general issue, the plaintiff exhibits a bond as evidence of the claim which is the subject of the suit, or a conveyance or record, as evidence of the title of the land demanded, for in such case there can be no variance in the statement of it.(d) (a) Gibson v. Hunter, 2 H. Bl. 205. United States Bank v. Smith, 11 Wheat. 172; Gates v. Nobles, 1 Root, 344; Humphrey v. West, 3 Rand. 516. (6) Proprietary v. Ralston, 1 Dall. 18. No. 3244. Book 4, tit. 8, chap. 11, sec. 3, § 5. No. 3244. 3244.-2. Formerly, it was supposed that no demurrer could be had to parol evidence, because no tenor can be predicated on it, and therefore, there was a danger of variance, in stating it upon the record. But in modern times, though it is said that a demurrer to evidence is considered an antiquated, unusual, and inconvenient practice, (a) it is not doubted that evidence of any kind, exhibited in support of the issue, may be demurred to, under the restrictions prescribed in the five rules following; so that if these conditions are complied with, by the party demurring, the opposite party must join in the demurrer, or waive the evidence. 1. When both parties voluntarily join in a demurrer to evidence, and the demurrer is properly framed, and with the necessary admissions stated upon record, the court must give judgment, although all the evidence exhibited in support of the issue may rest in parol. 2. When the fact itself is admitted on record, which it is the object of the evidence to prove; in such case the party exhibiting the evidence must join in the demurrer, or waive the evidence; (b) as if in trover. against a bailee, the only evidence exhibited of a conversion is to prove the mere negligence, on the part of the defendant, in keeping the goods; the defendant, by admitting upon record the fact of negligence in keeping, may demur, and oblige the plaintiff to waive the evidence or to join in the demurrer. This confession the defendant might safely make, because, mere negligence never constitutes conversion in trover. 3. When parol evidence, exhibited in support of the issue, is certain and direct, that is, explicit, absolute, and without any qualification, the adverse party, by entering the evidence upon the record, together with (a) The State v. Loper, 4 Shepl. 293. (b) Brandon v. Huntsville Bank, 1 Stew. 320; Alexander v. Fitzpatrick, 4 Porter 405. VOL. III. 31 No. 3245. Book 4, tit. 8, chap. 11, sec. 3, § 5. No. 3246. an admission that it is true, may demur, and compel the party exhibiting it to join in the demurrer, or waive the evidence; because in this case the admission of the evidence is the admission of the fact affirmed by it.(a) 4. When the evidence offered is not positive and determinate, the adverse party cannot demur to it, without stating it upon the record as certain and determinate, and admitting it in that form to be true.(b) 5. When the evidence is circumstantial, the party who demurs to it, must distinctly admit upon the record every fact, and every conclusion, in favor of the opposite party, which the evidence conduces to prove.(c) 3245. When the party, demurring to evidence of any kind, does not make the admissions required in the particular case upon the record, and, nevertheless, the opposite party joins in the demurrer, there is nothing on which the court can give a judgment on the demurrer; and, accordingly, in such case, the court must award a venire de novo, referring the facts to another jury for trial. 3246. On a demurrer to evidence, and joinder in demurrer, when both are properly framed, it is usual immediately to discharge the jury, as there is no question of fact to be tried by them; and if the plaintiff prevails on the demurrer, there may be a writ of inquiry of damages, which is to be executed afterward. Still, before they are dismissed, the jury may be re (a) Shields v. Arnold, 1 Blackf. 109; Burton v. Brashear, 3 A. K. Marsh, 276. But see Forbes v. Perrie, 1 Har. & John, 109. (b) Gibson v. Hunter, 2 H. Bl. 207, 208. (c) Feay v. Decamp, 15 S. & R. 227; Pawling v. United States, 4 Cranch, 219; United States v. Williams, Ware R. 175; Jacob v. United States, 1 Brock 520; United States Bank v. Smith, 11 Wheat. 320; Jackson v. United States, 5 Mason 425; Lowry v. Mountjoy, 6 Call, 65; Thornton v. Bank of Washington, 3 Pet. 40; Vaughan v. Eason, 4 Yeates, 54; Copeland v. New England Ins. Co. 22 Pick. 135; Clopton v. Morris, 6 Leigh, 278. No. 3247. Book 4, tit. 8, chap. 11, sec. 3, § 6, art. 1. No. 3247. quired to assess the damages provisionally; (a) and, in such case, if the demurrer be determined in favor of the plaintiff, he will be entitled to judgment for the damages thus provisionally assessed. In modern practice demurrers to evidence are rare, though they sometimes occur; the practice of taking a special verdict, the nature of which will be explained hereafter, is found more convenient. (b) § 6. Of the arguments of counsel. Art. 1.-General observations. 3247. In the course of a long trial, particularly when there are many points raised, and numerous witnesses examined, it is difficult, even with the best trained and disciplined minds, so to arrange the evidence which has been delivered that it shall apply with fairness to the pleadings on both sides; to sift what is not applicable, and reject it; what is collateral, and let it bear only a proper weight; to consider what is doubtful, and distinguish it from what is certain; what is worthy of credit from what is deserving of none; these, and many other points must be considered by the jury. It is the duty of counsel on both sides, so to arrange and explain all this, that the jury can fully understand the evidence, and the questions which, on their oaths, they are to decide; and the counsel should also state the questions of law which are involved in the case, submitting the law, however, to the direction of the court. Counsel are sworn or affirmed to be true to the court and to the client, but they are not bound nor required by law to press the claims of a plaintiff, or the defence of a defendant, per fas et nefas. They are the ministers of justice, and she can never require that while (a) 1 Lilly's Ab. 441; Fowler v. Macomb, 2 Root, 388; Hampton v. Windham, 2 Root, 199. (b) Vide post, n. 3264. |