4 Port. 405 | Ala. | 1837
— The first question in the case, is, had the defendant a right to demur to the evidence. This question does not arise in a case, in which the evidence is wholly parol, and loose and 'indefinite, or circumstantial. Whether the right exist in such a case, we shall not enquire. Here, a part of the evidence is written, and the remainder, although parol, is certain, and no more admitting of any variance, than the matter in writing.
In addition to the legal admission of the matters proved, which the demurrer would have been, in this case, had it been allowed, the defendant expressly admitted the truth of the evidence in the demurrer, that he offered.
The only question then, between the parties, was the legal effect of the facts, which had been . both proved and admitted.. The legal effect of facts, is in every case; a question for the Court to decide. If the facts proved in this cause had not been admitted by the defendant, and the jury had ascertained them, they ought to have applied the law to them according to any instructions which the Court gave, and returned a verdict that would have had the effect to which the Court decided the facts, if found would be entitled. If a plaintiff show no cause of action in his declaration, no principle is clearer or more just, than that which gives a defendant a right to admit all the facts which are well pleaded in the declaration, by a demurrer to it, and thus make the questions in the case purely legal, to be decided by the Court. No one has ever supposed that this principle encroached
As the County Court neither compelled the plaintiff to join in the demurrer, nor to waive his evidence,
Whether the error of the Court, in denying the right, be one for which a writ of error lies, is the next and last question.
Some Judges have expressed the opinion, that such an error is committed by a Court in the exercise of its discretion, and that for it no writ of error will lie. But the second branch of this proposition has not, within our knowledge, the judgment of any Court to support it.
That the writ lies for such error, has been adjudged, and principle in our opinion, requires the question to be so decided.
If a demurrer were offered by one party to evidence, the legal effect of which clearly maintained the part of the issue of the other party, and the Court were to reject it, the act of the Court might not be an error of which the party ought to be permitted to complain, because his demurrer was frivolous, and the record would show that he was not injured by the rejection.
But the demurrer, which was offered in this case, was not of a frivolous character. The evidence of the plaintiff is relavant to one only of the two issues in the case.
There is no error in the judgment of the Circuit Court. Let the judgment be affirmed.
2 H. Blac. 206 — Gibson & Johnson v Hunter — Cro. Eliz. 753 — 2 Uaná. R 68, 353 — 1 Stewart’s Rep. 321, 337, 557 — Gould’s Pi. 183, 480.
2 Porter's E.9,14 — 7 Cmnoh565
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