
    Duerhagen against The United States Insurance Company.
    On a demurrer to parol evidence, if the evidence be uncertain or circumstantial, the 'party offering it may pray the Court not to be compelled to join in the demurrer unless every fact, which the evidence in any degree tends to prove, be-confessed. So if one fact tends to the induction of another, the last fact must also be admitted. If the Judge who tries the cause errs, in direct* ing a joinder in demurrer, it is good cause for the Court in bank to oix der a venire facias cienovo,. The Court in bank may, on. the argument of the demurrer, make every inference of fact, which the evidence warrants; or if, upon consideration of the record, they should be of opinion, that there are not sufficient facts to warrant a judgment, they may or-' der a venire do notic.
    
    ON the trial of this cause at a Nisi Prius, held by the Chief Justice, in May last, after the plaintiff had gone through his evidence, the defendant demurred. The plaintiff’s counsel prayed, that they might not be compelled to join in the demurrer, unless certain facts were admitted. His honour directed the admission of all the facts which appeared to him to be in any degree supported by the evidence, but refused to direct some others to be granted, of which he thought there was no evidence whatever. He then delivered his opinion to the jury, who assessed conditional damages for the plaintiff.
    
      Levy and Ingersoll
    
    now moved for a venire facias de novo, "'alleging, that there were certain facts essential to the plaintiff’s case, without which the Court could not correctly decide the law involved in the controversy, and which, therefore, ought to appear upon the record. Demurrers to parol evidence, they said, which tended to produce delay and expense, and which withdrew from the proper tribunal, the decision of facts, ought not to be encouraged. In England, since the adoption of a liberal practice in granting new trials, they had become much less frequent than formerly. 3 Bl. Com. 373. Where the evidence is -written, and where, though parol, it is certain, the party who offers it must join in the demurrer or wave the testimony; but where it is loose or presumptive, where the jury may or may not presume facts, the party offering the evidence is not bound to join, unless the party demurring confesses, not only the truth of the circumstances in evidence, but every conclusion of fact which the jury might have inferred from those circumstances. Bull. N. P. 313. Gibson and Johnson v. Hunter.
      
       2 Tid. Prac. 790. 792, 793, 794. Worsley v. Filisker.
      
       Aleyn, 18. Cro. Eliz. 652. Patrick v. Hallet.
      
       In this case the evidence was circumstantial, and what the jury might or might not have inferred, was matter of great difficulty. To deprive the plaintiff, therefore, of an opportunity of laying all the circumstances of his case before the jury, without compelling the adverse party to admit all the facts which the jury might would be an act of great injustice, and an assumption of jurisdiction by the Court, over matters which peculiarly belong to another tribunal.
    
      Binney and Eawle, for the defendants,
    answered, that the motion of the plaintiff was irregular. On the trial his counsel had prayed, that they might not be compelled to join in .the demurrer, unless certain facts were confessed. Some of these facts the Chief Justice had directed to be admitted, but refused to compel the admission of others, in support of which he thought there was no evidence. It is the province of the Judge, who tries the cause, to decide, whether or not' the demurrer shall be allowed, and on what terms ;.it is to be formed under his direction; and if he errs in ordering a joinder, it is good cause for a new trial. But it is too late now for the plaintiff to object to joining in the demurrer, unless certain facts are granted, which were not aslced for at the trial. A demurrer to evidence is a legal right, of which the Court cannot deprive a suitor; but if a party may refuse to join in a demurrer, unless all the facts he wishes to establish are conceded, whether he offers .evidence in support of them or not, there is an end to this highly important mode of bringing matters of law before the Court. But why ask for a venire de novo '? The plaintiff may have the benefit of all the facts which the jury might have inferred without it, All the evidence is before the Court, who may now consider as proved, every fact which the evidence in any degree tended to prove. They cited Ross and Vaughan v. Eason.
      Cocksedge v. Fanshaw. Style, 22. S. C. Baker’s case, Cro. Eliz. 753. 5 Co. 104. S. C. Pawling v. United States.
    
    The counsel on both sides entered into a consideration of the evidence, but as their observations have no bearing upon the opinion of the Court, they are omitted.
    
      
      
        2 H. Bl. 187.
    
    
      
       2 Roll. Rep. 117.
    
    
      
      
         1 Johns. Rep. 245.
    
    
      
      
         4 Yeates, 54.
    
    
      
      
         1 Doug. 119.
    
    
      
       4 Cranch, 219.
    
   Tilghman C. J.

The motion of the plaintiff’s counsel is, that the plaintiff shall not be compelled to join in demurrer, .-unless certain facts are admitted. It is to be considered in what situation the cáuse-now. stands. When the trial came on before me at the last Nisi Prins, as soon as the plaintiff had offered all his evidence the defendant demurred. The plaintiff’s counsel objected to joining in the demurrer, unless certáin facts were admitted. Some of these facts I thought ought to be admitted, and directed accordingly. But one of them, to which it appeared to me there was no evidence whatever, I was'bf Opinion ought not to be admitted. Having delivered my opinion, the jury proceeded to assess contingent damages, but it seems the demurrer was not actually-drawn up. There is some difference in the recollection of the counsel, with respect to their own understanding at the time, as to the drawing up of the demurrer. But upon the whole, I cannot help thinking, that the substantial part of the business was settled, and what remained to be done was bdt matter of form. The law with respect to demurrers to evidence was well considered by this Court in the case of Pass and Vaughan’s lessee v. Eason. There may be a demurrer as well to parol as to -written evidence. But where the evidence is uncertain, or circumstantial, the party by whom it is offered, may specify the facts which he wishes to be expressly admitted, before he joins in the demurrer. The Judge must decide upon that matter, and, in my opinion, every fact should be admitted, which the evidence conduces to prove, though but in a slight degree.. So if one fact tends to the induction of another, the last fact should also be admitted. Under these restrictions ii is the right of the party demurring to insist on the demurrer-being joined, because it is his right to have the law decided by the Court, and not by the jury. And there is no danger of any injury to the trial by jury, arising from this practice, because it is the duty of the Judge to be liberal, in directing the admission of facts, and if he errs in judgment, it will be good causé for this Court in bank to order a. venire facias de novo. But in the present instance, the plaintiff’s. counsel say they were taken by surprise, and therefore omitted several material facts, which, upon reflection, they think they may fairly ask to be admitted. It may Very possibly be. so, although in this stage of the cause, it would be premature to give an opinion on that subject. How then does the plaintiff stand? If he was .really cut off-from any material defence, I should be for relieving him. -But he’ is not, because the Court may now en the argument of the demurrer, make every inference of fact in his favour, which the evidence warrants, and which he would have been justified in asking to be admitted, before he joined in demurrer; or, if upon full consideration of the record, the Court should be of opinion, that there are not facts sufficient to warrant a judgment, they may order a venirp de novo, as was done by the House of Lords, in the case of Gibson and Johnson v. Hunter, (2 H. Blac. 187.) Considering then, as I do, that the demurrer was substantially joined on the trial, I am of opinion that the plaintiff’s motion ought not to be granted.

Ye ates J. concurred.

Brackenridge J. delivered no written opinion, but inclined to a venire de novo.

Motion rejected,  