Woodgate's administratrix v. Threlkeld

6 Ky. 527 | Ky. Ct. App. | 1814

OPINION of the Court, by

Ch. J. Boyle.-

The judgment in this case was rendered upon a demurrer to evidence tendered by the defendant, in which the evidence given on both sides is stated. This we apprehend cannot regularly be done.^(a) The defendant coaid not by demurring cause his own evidence tobe taken for true, and the court cannot without usurping the province of the jury, decide upon its truth. In principle it is not less absurd for a party to demur to his own evidence, than it would be to demur to hi^ own plea ; and it is believed that there is no precedent tobe found in the English books for the former, no more than there is for the latter practice.

The judgment must therefore be reversed, and the cause remanded that a venire Jaaias de novo may be awarded, &c. *.

(a) Vide Hoyle vs. Young, 5 Wath. 151.