Page:Federal Reporter, 1st Series, Volume 6.djvu/693

 piCKEL V. iSGBiaa. 681 �been sustained. This case, on its facts, is not in conflict with the ruling in Foide v. Common CouncU qf Alexandria, whicb is sustained both by reason and authority. Gould on Plead. c. 9, part 2 ; Copeland v. New England Ins. Co. 22 Pick. 135 ; Oib- son V. Hanter, 2 H. Blackstone, 187. �The plaintifs' counsel relied mainly on the decisions in the supreme court of this state. In Straugh v. Gear, 48 Ind. 100, the appellees, as indorsees of a promissory note, sued the makers. The answer admitted the execution of the note, but charged that the defendant's signature was procured to the same by fraudulent representations, of which the plaintiffs had notice. It seems that when the defendant concluded bis testimony and rested, the plaintiffs demurred to the evidence, and the court sustained the demurrer. On appeal the case was affirmed on the ground that there was no evidence to show that the plaintiffs below bought the note with knowl- edge of the defence which the makers had against the payee. �The evidence of the defendant, upon whom the afiBrmation of the issue rested, was relative to a part only of that issue, and it is clear that in such a case a demurrrer to the evidence may be safely risked, while it is fatal to a demurrer if there be evidence relevant to the whole issue. In deciding this case on appeal the court says : ""When the plaintiff demurs to the evidence of the defendant, he should set out ail the evidence offered by the plaintiff and defendant at fuU length, so that the court may determine upon the whole evidence for whom judgment shall be rendered." This announcement of the court, besides being objectionable as confounding the relative functions of court and jury, was hardly called for in the decis- ion of the case. �Thomas v. Evddle, 68 Ind. 326, was also a suit by the ap- pellee, as indorsee, against the maker of a promissory note payable at a bank in this state. The answer was non estfac- tum, and this was the only issue in the case. After ail the evidence was in on both sides, the plaintiff, although he had the burden of the issue, demurred to the evidence, setting it ail out in bis demurrer, and it was sustained by the court. On appeal it was held that much of the evidence which tended. ��� �