
    Elijah T. Hinote, Appellant, vs. Simpson & Co., Appellees.
    1. No demurrer to evidence should be allowed and no judgment thereon given, unless the party demurring shall admit upon the record all the iacts which the evidence conduces to prove.
    2. It is not necessary to except to a judgment upon demurrer for the purpose of reviewing the same on error.
    Appeal from the Circuit Court for Santa Eosa county.
    Hinote brought an action of assumpsit, and declared for the price and value of goods bargained and sold to defendants; for work and materials; and for money had and received to the plaintiff’s use. Plaintiff’s bill of particulars was for 48 sticks of timber averaging 110 cubic feet each, worth $16 per stick, "which they took of mine and converted to their own use in March, 1874 — $798.”
    Defendants pleaded that they never promised in manner and form as alleged; that the timber was the property of defendants and not the property of the plaintiff.
    The cause came on to be tried by a jury, and the plaintiff submitted the testimony of several witnesses and rested.
    The defendant’s counsel then announced to the court that he demurred to the evidence, whereupon the court discharged the jury, and the defendant’s counsel was proced-ing to argue the demurrer, when the court said he did not care to hear from the defendants, but would hear first from plaintiff’s attorney. After some remarks by the attorney he asked leave to amend the declaration by adding additional counts, and to amend in other respects; and on a subsequent day of the said term the court denied the motion, to which plaintiff excepted. The court also sustained the demurrer to the evidence, and ordered judgment for defendant, and final judgment was entered accordingly. The plaintiff then appealed, and assigns for error:
    1. That tiie court erred in discharging the jury upon the announcement by defendant’s attorney that he demurred to the evidence and before demurrer filed, or rejoinder therein, or opportunity to join therein or to decline doing so, or adopting such other course as he may have desired.
    2. That the court erred in refusing to permit the plaintiff to amend his declaration.
    3. That the court erred in considering the announcement of the defendant’s attorney that he demurred to the evidence as a demurrer, and also in considering the demurrer before -joinder therein, or refusal to join therein.
    4. That the court erred in considering the so-called demurrer without first requiring the defendants to admit the facts testified to by the witnesses, and of which there was none other than parol evidence.
    o. In sustaining the demurrer.
    
      G. 0. Yonge for Appellant.
    1. A demurrer is a written pleading, and should be signed. Sellon’s Practice, p. 470; Buller’s Nisi Prius, 313, 320; Money vs. Leech, Bur., 1692.
    A demurrer to evidence is analogous to a demurrer to facts alleged in a pleading. 2 Tidd, 865; 2 H. Black., 205; 3 Black. Com., 372.
    A party demurring to evidence cannot take advantage of any defect in pleading. 2 Tidd, 865.
    The objection is that the declaration does not contain a count in trover or trespass, which is certainly an objection to the pleading.
    2. Refusal to allow amendment of declaration. Courts are liberal in allowing amendments to attain the ends of justice. The practice act of 1861 was adopted in this spirit.
    Sec. 1 dispenses with forms of action.
    Sec. 2 provides against the consequences of mistakes in actions.
    Secs. 5 and 6 authorize amendments by adding other plaintiffs.
    Sec. 7 provides for amending the writ.
    Secs. 8 and 9 authorize amendments by the defendants.
    Sec. 12 authorizes joinder of causes of action except ejectment and replevin.
    Sec. 74 provides that all defects and errors shall at all times be amended, and whether there is any thing to amend by or not. The application for leave to amend was promptly made before demurrer filed, before joinder in demurrer, or argument on demurrer, and, if it had been allowed, the whole controversy could then have been tried and settled.
    Leave should have been given before the discharge of the jury, but even after the discharge it ought to have been given, and a jury resummoned to assess the damages. 2 Tidd, 866f 867.
    3. This error rests on same reasoning and authority as the first; also, see 11 Wheaton, 320, where it is held that there can be no judgment on demurrer to evidence till joinder therein.
    4 . That the court should have required the defendants to have admitted the facts testified to, there being no other than oral proof. 2 Tidd, 866.
    5. The demurrer ought not to have been sustained, because the plaintiff had the privilege to waive the tort, and sue in assumpsit. 1 Ohitty’s PL, p. 198.
    The proofs show a conversion and appropriation «.f the timber. The defendants converted the timber into saw-logs, and hauled it away.
    The case of Higgs1 vs. Shehee, 4 Fla., 382, holds that the party demurring to the evidence admits not only the truth of the facts to which he demurs, but the conclusions which may be fairly drawn from them. These conclusions are that they realized the value of the timber which they thus converted.
    Every thing which the jury may infer must be admitted. 11 Wheaton, 171.
    Demurrers to evidence have become almost obsolete, having been superseded by motions for new trials. Archbohl N. P.
    Demurrers to evidence should be. discouraged. Bank of Md. vs. Smith, 11 Wheaton, 171; Fawle vs. Alexandria, 11 Wheaton, 320.
    The special hardship in case.
    
      Geo. G. McWhorter for Appellees.
    The plaintiff, by not excepting to the action of the Judge, acquiesced in the discharge of the jury.
    The bill of exceptions does not show that plaintiff excepted.
    1. The motion to amend by “adding additional counts” was a waiver of any irregularity that preceded it. If plaintiff objected to the action of the .court in discharging the jury, he should have excepted to such action and rested on his exception.
    2. The court did not err in sustaining the demurrer. The court has a right to compel a joinder in demurrer to evidence. See Alexander vs. Fitzpatrick, 4 Porter’s Alabama Reports, p. 405. The object of a demurrer to evidence is not to substitute the Judge for the jury as a trier of the facts, but to ascertain the law upon an admitted state of facts. The facts being admitted, there is no function remaining for the jury to perform.
    3. The evidence shows a destruction of the property. No implied contract to pay for it can be presumed. The cases that support the principle that a party may waive a tort and sue in assumpsit, limits its operation to those cases where the defendant has had the “beneficial use” of the property taken. See Greenleaf on Evidence, vol. 2, sec. 108, and note 5. This is the farthest extent to which these cases go. In many of them it has been held that the principle only applies to cases where “money” has been actually received from the sale of the property wrongfully converted. See same note, and also 17 Ala. Reports, 53, 54.
    4. The court did not err in refusing to allow the amendment. “Adding additional counts” was too comprehensive; it embraced too much. The cqurt was not advised whether the “additional counts” were appropriate or not. If there were any counts known to pleading, which would have been improper counts in an action of assumpsit, then the refusal was correct.
    5. But whether the court was right or wrong in refusing the leave to amend, this court cannot revise its action, because the proposed amendment “which was offered to the consideration of the court below,” or which “was considered by the court below,” was not inserted in the bill of exceptions as required by act of 1853, of January 7, secs. 1 and 2; also Bush’s Digest, 432 and 433, secs. 8 and 9.
    
      C. G. Yonge in reply.
    1. The motion to amend was no waiver, because the motion was not granted, and plaintiff had no opportunity of availing himself of the amendment he asked to be permitted to make.
    2. That the court has the power to compel a joinder in a demurrer to evidence, does not sustain the second proposition of appellee. The court did not do so if it had the right.
    3. The evidence does not show a destruction of the timber. “Timber” has a well recognized and known meaning as contra-distinguished from saw-logs; it is of much greater dimension, and generally too large for saw-logs without being cut in two. I have not now access to the record, but my recollection is, that the evidence was that they cut the timber in two, and hauled it to the stream. This was a conversion and appropriation of it. The current of authorities is to the effect, that when there is a conversion, even without sale of property, the tort may be waived and as-sumpsit brought for. the value, though they are not perfectly uniform on this point.
    But where there is a demurrer to evidence, the rule is that every presumption is in favor of the evidence demurred to, not only as to the facts proved, but the' conclusions and inferences that may be drawn from them. It is a fair inference where there is a conversion of goods that the value is realized, else why a conversion? Higgs vs. Shehee, 4 Fla.
    4. The motion “to add additional counts” should have been granted, unless the counts were such as could not, by the rules, be added. But the character of the counts was indicated by ’the objection made, to-wit: that where the proof showed a conversion of goods, that there could be no recovery in assumpsit. The court knew, and the defendant knew, that the count sought to be added was in trover. Why specify what was already obvious? The refusal excluded counts of any kind.
    5. The object of the act of 1853 was to permit a party to.-' assign as error a ruling of the court in the progress of a., case, where such ruling did not result in a final judgment, there being no appeal except from final judgment. This ruling resulted in a final judgment, and the plaintiff was entitled to, his appeal independent of that statute.
    But in point of fact, the proposed amendment “which was considered by the court,” was inserted in the bill of exceptions. It.was that the plaintiff be permitted “to add additional .counts,” and what these counts were, it has already been'shown, was necessarily well known to the court, and it would have been a useless encumbrance to the record had they been copied into it. Another trial cannot injure the appellee. The denial of it would be fatal to the appellant, because his claims would be barred by the statute of limitations.
   The Cettef Justice

delivered the opinion of the court.

Demurrers, to evidence are so seldom resorted to, that in many of the States the practice is scarcely known to the profession. ' In this State but one case has been before this court, and then the question that arises here was avoided. Higgs vs. Shehee, 4 Fla., 382. From the reading of that case we infer that the demurrer was properly framed.

In the present case the plaintiff having submitted his testimony, all of which was oral, the defendant’s counsel announced that he demurred to the evidence, whereupon the court discharged the jury, plaintiff’s counsel asked leave to amend his declaration, which motion was denied, and the court gave judgment for the defendants upon the de-ipurrer.

By consulting the ancient practice, the present case is readily determined.

If both parties voluntarily join in a demurrer to the evidence, and the demurrer is properly framed, and the necessary admissions are entered upon the record, the court must give judgment upon it.

When any evidence is produced, the opposing party, by expressly admitting the fact sought to be proved in support of the issue, upon the record, may demur and compel the party opposing the evidence to join in demurrer or waive the evidence. The fact being admitted upon the record, the question of law is thus presented to the court.

From the rules thus stated it is apparent that if the party demurring to evidence does not make, upon the record, the admissions required in the particular case, and the opposite party, nevertheless, joins in demurrer, the court can give no judgment upon the demurrer, but must award a venire de novo.

On a demurrer to evidence, properly framed, and joinder in demurrer, the usual course is, immediately to discharge the jury of the issue in fact.

The foregoing rules are condensed from Gould’s Pleadings, ch. IX., ss. 47 — 73, compiled from the English decisions and text writers. Cro. Elia., 752; 2 H. Blacks., 206; Bac. Abr. Pleas, n. 7; Com. Dig. Pl., q. 10, &c.

In Gibson and Johnson vs. Hunter, 2 H. Blacks., 187, 209, Ch. J. Eyre, advising the House of Lords, said: “That upon the state of the evidence given for the plaintiff in this case, it was not competent to the defendants to insist upon the jury being discharged from giving a verdict, by demurring to the evidence, and obliging the plaintiff to join in demurrer,without distinctly admitting upon the record, every fact and every conclusion which the evidence given for the plaintiff conduced to prove.” Second, as to the question, “whether on this record any judgment can be given?” to which we answer, “that we conceive no judgment can be given,” for the reason that it was impossible to ascertain from the demurrer what were the facts. The case of Gibson and Johnson vs. Hunter we find cited by all courts as establishing the practice in such cases. (And see Fowle vs. the Com. Council of Alexandria, 11 Wheat., 320.)

In the case at bar we find that the demurrer was general, nothing was reduced to writing, no specific facts admitted upon the record, no joinder in demurrer, voluntarily or otherwise, but upon the naked announcement by defendants’ counsel that he demurred to the evidence, the jury was discharged and judgment rendered against the plaintiff. This error is “apparent in the record,” by the entries made under the direction of the court, and therefore no exception was necssary to bring the question before this court.

According to the doctrine of the authorities the court could give no judgment upon such a demurrer.

It is not necessary to* notice the error alleged, that the court refused to permit the plaintiff to amend.

As the case must go back for a new trial, the counsel will have an opportunity to tender such amendments as they may desire.

The judgment must be reversed, the judgment sustaining the demurrer vacated, and a new trial ordered.  