Shields v. Arnold

HELD, that one party has a right to demur to the evidence of the other, although it be parol; and-that Ms adversary is bound to join in demurrer (1).

The leading case on this subject is Gibson v. Hunter, 2 H. Bl. 187. It is there settled, that either party may demur to the evidence of the other, whether it be written or parol. If the evidence be -written, the party must join in demurrer; so if it be certain and positive, though parol. But if the parol evidence be either loose and indeterminate, or circumstantial merely, every fact a,nd conclusion which the evidence conduced to prove, must be distinctly admitted, upon the record, hefore a joinder can be demanded. Ibid. — 1 Arch. Pr. 185. — Fowle v. The C. C. of Alexandria, 11 Wheat. 320. — The Columbian Ins. Co. v. Catlett, 12 Wheat. 383, 389. And when the party joins in demurrer, without insisting on this-admission, upon the record, the Court may draw $}g same inferences in his favour, from the facts stated, -which the jury could *110have drawn. Ibid. If the demurrer be so negligently framed that there is no certainty in the statement of the facts proved, it ought not to be allowed; but it be, and there be a joinder and judgment, the latter will be reversed on a writ of error, and a venire facias directed. Gibson v. Hunter, supra. — Fowle v. The C. C. of Alexandria, supra. — 1 Arch. Pr. 186. Vide also on the subject of demurrers to evidence, Cocksedge v. Fanshaw, Doug. 119. — Lewis v. Few, Anth. Cas. 79, note a. — Pawling v. The United Stales, 4 Cranch, 219. — The U. S. Bank v. Smith, 11 Wheat. 171, and note. — Bulkeley v. Butler, 2 Barn. & Cress. 434. — Dougherty v. Campbell, ante, p. 39.