Page:Federal Reporter, 1st Series, Volume 6.djvu/691

 PIOKEL V. ISGBIGG. 679 �holding, as some of the courts have held, that on a demarrer to the evidence the court takes the place of the jury and finds for the demurring party, unless, by a fair and reasonable con- struction of the evidence, the jury might have found for the adverse party. �I am awate that there are expressions in the opinion of the court in the case of the U. S. Bank v. Smith, H Wheat. 171, which do not sustain the views here announced. In deliver- ing the opinion of the court in that case Mr. Justice Thomp- Bon says : "By a demurrer to the evidence the court in which the case is tried is substituted in the place of the jury; and the only question is whether the evidence is sufficient to inaintain the issue. The judgment of the court on such evi- dence will stand in place of the verdict of the jury ; ♦ • * and ever3H;hing which the jury could reasonably infer from the evidence demurred to is to be considered as admitted." But at a later day in the same term, in the case of Fowle v. Common Council of Alexandria, reported in the same volume, in delivering the opinion of the court, Mr, Justice Story says : "It is no part of such proceedings (demurrer to evi- dence) to bring before the court an investigation of the facts in dispute, or to weigh the force of testimony or the presump- tion arising from the evidence. That is the proper province of the jury. The true and proper object of such a demurrer is to refer to the court the law arising from the factsy It supposes, therefore, the facts to be already admitted and ascertained, and that nothing remains but for the court to apply the law to those facts." �In the earlier case of Young v. Black, 7 Cranch, 565, the same learned judge says : "The party demurring is bound to admit as true not only ail the facts proved by the evidence introduced by the party, but also ail the facts which that evi- dence may legally conduce to prove." �In the case of Chenoweth v. Lessees of HasTcett, 3 Pet. 92, Chief Justice Marshall says : "The defendants in the district court having withdrawn the case from the jury by a demurrer to the evidence, or by having submitted the case to the jury, subject to that demurrer, cannot hope for a judgment iu ��� �