Andrews v. Hammond

, WHERE there is a demurrer to evidence and a joinder, the Court may have the damages assessed by the jury conditionally ; or they may discharge the jury, leaving the damages to be .assessed by another jury should the demurrer be overruled. Bull. N. P. 314. — 2 Tidd’s Pr. 786. — M'Creary v. Fike, 2 Blackf. 374. If from the evidence set out in such demurrer, the jury might have inferred that the action should be sustained, the judgment should be for the plaintiff. M'Creary v. Fike, supra (1). If a judgment be reversed, the proceedings back to the first error will be set aside, and the plaintiff in error will have judgment for costs. Footnotes [1] (1) “By a demurrer to evidence, all the facts of which there is any evidence are admitted, and all conclusions which can fairly and logically be deduced from those facts.” Per Best, J., in Bulkeley v. Butler, 2 B. & C. 434. See Shields v. Arnold, 1 Blackf. 109, note, and Doe d. Wilkins v. Rue et al. 4 id. 263.