Page:Federal Reporter, 1st Series, Volume 6.djvu/690

 678 ���FEDKKAL BEPOBTKR, ���uected therewith. It is insisted by counsel for the plaintifl that the form of the demurrer, and the action of the court thus far in connection with it, are in conformity with the practice in Indiana, as settled by the supreme court of the state, and that the Jury could not havo rendered a verdict for the defendant iinder any fair or reasonable construction of the evidence, and therefore the demurrer should be sustained, and judgment entered for the plaintiii. So far as known, this is the first time there has been a demurrer to evidence in this court. Isgrigg denied the execution of the note in his sworn answer, and that oompelled the plaiutiff to assume the burden of the issue. �The evidence of a party, upon the affirmation side of an issue of fact before a jury, may be demurred to by the ad- verse party under certain conditions. The party upon whom the burden of the issue rests is not permitted to demur to the evidence of the other party, for he cannot be allowed to assume that he has made out his case. If there is evidence tending to prove a fact, that fact must be distinctly admitted in the demurrer to be absolutely true, so that the court will have nothing to do but apply the law to the established facts. And this is the case, whether the evidence be direct and pos- itive, or circumstantial and uncertain. If there be circum- stantial evidence only slightly tending to prove a fact, the demurring party is required to admit that fact to be abso- lutely true before the opposite party will be required to join in the demurrer. Unless the necessary admissions are dis- tinctly made of record, no judgment can be pronounced on the demurrer, for the court is not substituted for the jury to •weigh the evidence. The relative functions of the court and jury are not to be lost sight of in determining the proper pra,ctice in a matter of this kind. The court admits to the jury ail evidence which tends in any degree to prove or dis- prove the issue, and it is for the jury to say how far the evi- dence goes in proving or disproving the issue. In other words, it is the exclusive province of the jury to weigh the evidence which the court has admitted as relevant to the issue. The right of trial by jury is in eflfect destroyed by ��� �